By now no one should be surprised at President Trump’s sweeping reversals of the conventional wisdom on everything from A (asylum) to W (wilderness access) — sorry, no executive orders affecting anything beginning with Z yet.
But in revoking President Lyndon Johnson’s 1965 Executive Order 11246 that launched our decades-long imposition of de facto racial quotas under the euphemism “affirmative action,” Trump has gone beyond the boldest imagination of any previous administration.
A brief history: When the Civil Rights Act of 1964’s Title VII — the clause banning racial discrimination in hiring — was debated in the Senate, opponents charged it would lead to racial quotas.
The Civil Rights Act’s floor manager, future Vice President Hubert Humphrey, denied the claim, saying, “If the senator can find in Title VII any language which provides that an employer will have to hire on the basis of percentage or quota related to color, race, religion or national origin, I will start eating the pages one after another because it is not in there.”
Humphrey lied, essentially. The civil-rights lobby was already planning for Johnson’s executive order that called for federal contractors to adopt “affirmative action” — that is, quotas by another name.
Of course, since so many American companies do business with the federal government, this edict affected virtually the entire private sector.
Although the original EO 11246 didn’t yet mention “goals and timetables,” it did require all companies to file “compliance reports” to the federal government, which were in many ways self-incriminating documents by design.
And the only way to assure compliance and avoid the risk of federal or private civil-rights lawsuits was to adopt preferential hiring practices.
By the late 1970s, half the Fortune 500 companies faced civil-rights lawsuits alleging racial discrimination.
It was the most dishonest legal regime ever imposed, especially since Title VII included, at critics’ insistence, language explicitly prohibiting preferential hiring by race.
That’s one reason for the decades of legal evasions and linguistic euphemisms, which not only turned the clear language of the Civil Rights Act on its head but repudiated Martin Luther King Jr.’s clarion call for a color-blind society.
It’s why Justice Antonin Scalia observed the Civil Rights Act had been written with “a clarity which, had it not proven so unavailing, one might well recommend as a model of statutory draftsmanship” but because of the subterfuges had been transformed into “a powerful engine of racism and sexism.”
Yet Hubert Humphrey never did have to live up to his promise to adopt a high-fiber diet.
Despite the deep unpopularity of affirmative-action quotas with the American public (and repeated popular votes to end the practice on the state level including twice in California), no previous Republican administration had the courage to attack it head on.
The Reagan administration considered revoking EO 11246 in 1985, at the initiative of Attorney General Ed Meese.
Ronald Reagan’s cabinet was sharply divided on the issue, with RINOs like Transportation Secretary Elizabeth Dole and Labor Secretary Bill Brock arguing against it and getting several major corporate CEOs to lobby Reagan personally to keep it in place.
Corporate CEOs were so intimidated by the civil-rights onslaught that a survey of Fortune 500 companies in the mid-1980s found 88% would keep their affirmative-action hiring regime even if no longer legally compelled to do so.
Faced with the phalanx of opposition from his own cabinet, party and business interests, Reagan quietly withdrew the proposed repeal of 11246.
And thus Trump has now gone where even the Reagan Revolution feared to tread.
This is no minor legal change: It represents the restoration of the principle of equal rights correctly understood.
Steven F. Hayward is the Edward Gaylord Distinguished Visiting Professor at Pepperdine University’s School of Public Policy.
