- - Tuesday, November 1, 2016

ANALYSIS/OPINION:

Just when you thought the lawlessness of the most lawless administration in the history of the republic could not get worse, the U.S. Department of Justice files another legal brief, and it does. A class-action lawsuit has charged that the names of as many as 3,500 ready-to-hire air traffic controller applicants were “purged” so the Federal Aviation Administration (FAA) could hire based on race. In response to the suit, federal lawyers have asserted their clients are immune from liability for denying constitutional equal protection because of the doctrine of sovereign immunity. In other words, they are protected by the legal maxim, “Rex non potest peccare,” which means, “The king can do no wrong.”

Beginning in 1991, the FAA collaborated with universities and colleges to create 36 accredited degree programs in diverse Collegiate Training Initiative (CTI) schools. Then, the FAA hired those with CTI program degrees, references from CTI administrators, and “well qualified” rankings on the challenging Air Traffic Selection and Training exam (AT-SAT) — a validated, proctored, eight-hour, computer-based test. In 2013, however, to achieve racial diversity — notwithstanding that nearly 12 percent of those attending CTI programs were African Americans — the FAA abandoned that program, “purged” its files of between 2,000 and 3,500 CTI graduates, and began hiring any English-speaking citizen with a high school diploma, while screening new applicants to ensure their racial “diversity.”

In late December 2015, Mountain States Legal Foundation responded with a class-action lawsuit in Arizona federal district court on behalf of those who had satisfied the FAA’s time-tested and rigorous tests for their employment as air traffic controllers but whose names were purged after the FAA announced minority hiring plans. The lawsuit charges violation of the Equal Protection Component of the Due Process Clause of the Fifth Amendment and Title VII of the Civil Rights Act of 1964. The class is represented by Andrew J. Brigida, who holds two bachelor of science aviation degrees from Arizona State University and scored 100 percent on the AT-SAT. Mountain States Legal Foundation filed an amended complaint in April and a second amended complaint in August, following congressional action that did nothing to remediate the constitutional and statutory injuries suffered by its clients. That is when federal lawyers responded that their clients were like “kings.”

Everyone is familiar with William Blackstone’s famous aphorism, “That the king can do no wrong, is a necessary and fundamental principle of the English constitution.” But what does that have to do with us on this side of the Atlantic — we who revolted against a “God-King” with the words “all men are created equal,” broke free, and created a constitutional republic?

As it turns out, precious little. In 1996, Supreme Court Justice John Paul Stevens wrote that sovereign immunity is a judge-made doctrine that has been “thoroughly discredited” because it is founded on the notion “that a divinely ordained monarch ‘can do no wrong.’ ” Not surprisingly, “Sovereign immunity is a right that cannot be found in the text or the framers’ intent,” wrote recognized legal scholar Erwin Chemerinsky.

More importantly, whether the federal government is subject to the Constitution’s guarantee of equal protection was asked and answered in 1995. In a reverse discrimination lawsuit brought by a small family business that installed guardrails on federal highway projects, federal lawyers argued that the federal government was exempt from the equal protection clause because of its responsibility to rectify racial injustice. The Supreme Court rejected that notion. Justice Sandra Day O’Connor wrote in Adarand v. Pena for the 5-4 majority, “[A]ll governmental action [‘by whatever federal, state, or local governmental actor’] based on race … should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.” Concurred Justice Antonin Scalia, “In the eyes of government, we are just one race here. It is American.”

Another day, another legal filing, and yet another unconstitutional assertion by the Obama administration.

William Perry Pendley, an attorney, is president of Mountain States Legal Foundation in Denver and author of “Sagebrush Rebel: Reagan’s Battle with Environmental Extremists and Why It Matters Today” (Regnery, 2016).

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