On ObamaCare, Beware the 'Not Required' Argument

As George Will recently noted, President Obama has slyly but significantly revised the wording of his repeated assurance that everyone satisfied with their current health insurance will be able to keep it:

His slippery new formulation is that nothing in his plan will “require” anyone to change coverage. He used to say, “If you like your health care plan, you’ll be able to keep your health care plan, period.” He had to stop saying that because various disinterested analysts agree that his plan will give many employers incentives to stop providing coverage for employees.

Voters, however, should be wary of regulation-addicted statist officials trying to reassure them about what sweeping legislation does not require. Indeed, whenever a politician says nothing in his proposed legislation requires this or that, you can be pretty sure that both this and that will be crammed down the public’s throat in short order. For confirmation, one need look no further than the landmark Civil Rights Act of 1964.

The fear that the act would lead to preferential treatment was so central and so contentious that it was the subject of a joint memorandum submitted to the Senate by the floor captains of the bill, Senators Clark (D-PA) and Case (R-NJ), which emphasized that it would not:

There is no requirement in title VII that an employer maintain a racial balance in his work force. On the contrary, any deliberate attempt to maintain a racial balance, whatever such a balance may be, would involve a violation of title VII because maintaining such a balance would require an employer to hire or to refuse to hire on the basis of race. It must be emphasized that discrimination is prohibited as to any individual.

That guarantee was written into the act as Section 703 (j), which provides that nothing in the act:

shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee ... to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin.

That same guarantee pervaded the language of Title VII, such as Section 703 (d):

It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.

This language was so clear and so pervasive that in United Steel Workers v. Weber, 443 U.S. 193 (1979), Chief Justice Burger was moved to write:

Often we have difficulty interpreting statutes either because of imprecise drafting or because legislative compromises have produced genuine ambiguities. But here there is no lack of clarity, no ambiguity.