Obamanomics and the Ghost of Title 2

Nobody has ever been endangered by being offered poison in a bottle bearing a label with a skull-and-crossbones. Poison is usually offered in a glass of the best wine – or, modern version, in a quart of the milk of human kindness. – Ayn Rand (page 367)

Barack Obama’s newest plan for stimulating the economy is nothing new. “The President’s Plan for Economic Growth and Deficit Reduction” is a hodgepodge of massive government spending ($450 billion), central planning (an “infrastructure bank”), and a huge dose of increased taxes ($1.5 trillion). There is one particularly egregious feature of it I’d like to highlight. On page 15 of “The American Jobs Act” section, we find this:

Combat discrimination against the unemployed. Recent reports have highlighted companies that are increasingly expressing preferences for applicants who already have a job. Specifically, some companies are posting job listings that include language such as “unemployed candidates will not be considered” or “must be currently employed” or “must be employed within the last six months.” The exclusion of unemployed applicants is a troubling and arbitrary screen that is bad for the economy, bad for the unemployed, and ultimately bad for firms trying to find the best candidates. This is particularly true at a time when so many Americans have found themselves out of work through no fault of their own. New Jersey has passed legislation to address this practice, and members of the Congress also have introduced legislation. The President is calling for legislation that would make it unlawful to refuse to hire applicants solely because they are unemployed or to include in a job posting a provision that unemployed persons will not be considered.

The Obama Administration’s “jobs” scheme contains a poison pill taken from the medicine chest of a long-established precedent – a pill that has already gained a foothold, regrettably, in NJ. This new “anti-discrimination” clause is yet another assault on the right to voluntary contract and on the employers’ freedom to act upon his own judgement to the benefit of his own business – basic moral principles that are also prerequisites for a healthy job market. It would open up a whole new avenue for predatory lawsuits, empower government officials with new and still more arbitrary – i.e., tyrannical - powers, and further diminish freedom in America.

“Discrimination” has turned into a synonym for evil, even though discrimination is an indispensable corollary of free will and free choice based upon rational judgement. Discrimination is bad only in very narrow circumstances, such as judging a person based upon some personal trait over which he has no choice. Martin Luther King famously called for people “not be judged by the color of their skin but by the content of their character”. Not every unemployed person is of bad character, but a person’s employment record certainly goes to a person’s character, and a rational employer would certainly take that into consideration. Aside from character, there could be plenty of rational reasons why an employer may want to narrow down the field of job applicants in the manner described in the anti-discrimination clause. But, even if certain employers set objectively demonstrable irrational criteria, it is their right. They are violating no one else’s rights in doing so, since there is no such thing as a “right” to be considered for a job (See “Individual Rights”).

Illegalizing “discrimination against the unemployed” is such a broad and vague assault on an employers’ rightful prerogatives that any unemployed person turned down for a job or job interview represents the threat of a lawsuit or the bringing down of the wrath of some government bureaucrat with unaccountable, undefinable powers. If you want an example of why business is so reluctant to hire in America, look no further than this new “anti-discrimination” clause – which exemplifies the extreme anti-business hostility and the continuing assault on productive Americans that reigns in the current administration.

There’s a blatant element of hypocrisy here, too. Discrimination against job creators, which are largely clustered in the $200,000 - $250,000 and up income brackets, is just fine, apparently. Almost all of the $1.5 trillion in “revenue increases” that will allegedly be realized under Obama’s plan is targeted at this select group. The president apparently can’t see the contradiction – or perhaps that is the point. For Obama, “economic growth” has always taken a back seat to his ideological push for expanded government control and central planning. Even strictly from the perspective of the unemployed, there is nothing to be gained from outlawing “discrimination against the unemployed”, as a minute of thought would tell you. For every person who switches jobs, one job opening is filled and another is created at the employer he left, leaving the same number of job opportunities available. Unemployed job seekers gain nothing from Obama’s proposed intrusion into private hiring practices. But again, helping the unemployed is secondary to his ideological agenda. Government’s long established anti-discrimination crusade against private individuals has served as an ever-widening wedge of expanding statism.

The broader point is, we’re seeing the legal assault against voluntary private association continuing to run amuck. How and when did the government become the arbiter of good vs. bad discrimination? It all began in 1964, when the government usurped the constitution by arrogating to itself the power to prohibit discrimination it did not approve of in the private sphere. The escalating consequences followed. For a concrete example, the principle established then led to laws and regulations that contributed significantly to the chain of events that culminated in the financial crisis, as “financial institutions greatly increased their lending to targeted socio-economic groups that were less credit worthy due to fears that they might otherwise be hit with anti-discrimination law suits.” If a company sees it necessary to skew its hiring policy for the same reason, to the detriment of more qualified people, - a likely long-term consequence once the anti-discrimination police get their foot in the door – what will the consequences be? Logically, one can see a business facing the prospect of a less productive workforce, leading to an increasing reluctance to hire – i.e., to create jobs.

Obama’s latest assault on private business – an assault that is apparently bipartisan to some extent - is just another example of how bad principles metastasize. The principle established with Title II of the 1964 Civil Rights Act - that the government may regulate how and when private individuals may exercise discrimination - has led to ever-widening intrusions on our liberties. Since discrimination is inherent in any human choice involving two or more alternatives, the government now has the theoretical power of complete thought control over each and every one of us, particularly in the field of human associations. As I have argued before, and to once again refer to the wisdom of James Madison, the only way to avoid “the consequences in the principle [is] by denying the principle.” Title II is the birthplace of an insidious principle, which came cloaked in the righteous crusade against an evil brand of discrimination – racial discrimination. The “skull-and-crossbones” were hidden “in a quart of the milk of human kindness”, or good intentions, and the poison was swallowed. By ignoring the principle, lawmakers evaded the inevitable consequences. But as Ayn Rand has observed, "We can evade reality, but we cannot evade the consequences of evading reality."

Title II is one of the legal breeding grounds of the relentlessly growing statism in America. It must ultimately be repealed if the drift toward totalitarianism is to be reversed.

-Mike LaFerrara