by Ilya Shapiro, CATO Institute
Good news out of Congress this week (and by good news, I mean they didn’t screw things up any more than they already are): The infamous Akaka Bill, which would create a “Native Hawaiian” government for purposes of racial preferences and other unconstitutional goodies, will not be a part of the slimmed-down legislation that funds the government until Congress gets around to passing an actual budget. (For background, see my op-eds here – for which I was attacked by Hawaii’s Governor-Elect Neil Abercrombie – and here, and watch the Cato Capitol Hill Briefing. And for coverage of a related recent Supreme Court case, see these two blogposts and Cato’s amicus brief.)
Three weeks ago, there had been fears that the Akaka language would be inserted into the omnibus spending bill (see Roger Clegg and Hans von Spakovsky blogging at NRO’s The Corner). Had that been the case, it would’ve been an outrage for several reasons:
- This is a new Akaka Bill. The text was only introduced in November and was apparently the result of a backroom deal cut between the Hawaii’s senators and lame-duck Governor Linda Lingle in July, but which did not become public until after the election.
- There have never been any hearings on this language — not in the House of Representatives Natural Resources Committee, not in the Senate Indian Affairs Committee, and definitely not in Hawaii. No testimony has been heard about how this particular bill will divide Hawaii, on the constitutionality of the new provisions, how Hawaiians’ civil rights will be affected, or how the tax base of Hawaii will be diminished.
- This is an abuse of the process. It is completely inappropriate to use a must-pass spending bill to avoid debate, amendment, and public scrutiny on an unrelated matter of such grave constitutional and practical importance.
- Sen. Inouye (D-HI) previously denied that he planned to use the appropriations process to avoid public scrutiny of the bill, so this would have been a 180-degree reversal.
Perhaps bowing to the above kinds of arguments, what actually appeared in the mega-bill was a “study” that the Secretary of the Interior had to conduct in conjunction with “those offices designated under the Hawaii State Constitution as representative of the Native Hawaiian community,” to make recommendations to Congress “on developing a mechanism for the reorganization of a Native Hawaiian governing entity and recognition by the United States of the Native Hawaiian governing entity as an Indian tribe.” In other words, this was getting the ball moving, establishing facts on the ground, etc.
Fortunately — for many reasons unrelated to race-based government – the omnibus went down in flames (the first tangible victory for the Tea Party, before their congressmen even assumed office?) and with it the aforementioned “study.” The new streamlined “continuing resolution,” which I’ve skimmed in its entirety — just 36 pages! – still includes various legislative gems but there is no mention of the Aloha State.
That’s a good thing: we seem to have escaped the spectre of race-based government yet again — but be aware that the Akaka Bill lurks in the background of every Congress, ready to ensnare those who think it’s just about “parochial” Hawaii issues that have nothing to do with the “real world.”