America First Legal’s Center for Legal Equality Attacks the Biden OMB Proposal for Government-Wide Racial Classifications as Unlawful and Irrational

OMB Proposal Sets Standards Based on “Identity” Without Congressional Authorization, Also Sets the Stage for “Reparations” to Persons Who Identify as Descendants of African Slaves.

WASHINGTON, D.C. – Today, America First Legal (AFL) submitted formal comments opposing the Office of Management and Budget (OMB) proposal to revise the federal government’s definitions of race and ethnicity as unlawful and irrational.

The Biden Administration’s obsession with classifying and discriminating against Americans based on their race has been evident throughout the last two years. From programs that affirmatively discriminate against Americans based on their race (and that AFL stopped), to an Executive Order infusing racial considerations into every department and agency across the government, the Administration has continually used race as a means to divide Americans. 

Now, the Biden Administration seeks to go further with OMB’s Initial Proposals For Updating OMB’s Race and Ethnicity Statistical Standards. OMB’s proposals claims that “federal race and ethnicity standards are inherently complex because they seek to capture dynamic and fluid sociopolitical constructs” and are “not an attempt to define race and ethnicity biologically or genetically.” Although OMB’s alleged goal is to “produce more accurate and useful race and ethnicity data,” the proposed standards are too vague, subjective, and irrational to do so. Instead, the point of OMB’s revision is to provide the Biden Administration with more tools to manipulate the federal budget and create a spoils system for rewarding its political allies and favored groups with taxpayer funds.  

Ominously, it seems OMB is setting the stage for the payment of “reparations” to some, but apparently not all, descendants of African American slaves.

The flaws in OMB’s proposed data collection are open and obvious. For example: 

  • OMB erases American Indians’ unique heritage. Under its proposal, any person may qualify as an American Indian or Alaska Native if he or she  maintains an [undefined] “cultural identification” with “with any of the original peoples [undefined] of North, Central, and South America.” Thus, a person from Brazil or El Salvador who “identifies” with “original peoples” is every bit as much an American Indian as a lawful member of the Apache or Cherokee tribe. And, if Elizabeth Warren identifies as an American Indian, then, according to the Biden Administration, she is an American Indian.  
  • By contrast, any person with undefined origins in a ‘black racial group of Africa’ qualifies as ‘Black’ regardless of cultural identification.” According to the Biden Administration, a “Black or African American” person is defined racially, but an “Asian” and “White” person are defined by geographic region. 
  • The definition of Latino and Hispanic mixes geographic and linguistic characteristics in incoherent ways. It “includes all individuals who identify with one or more nationalities or ethnic groups originating in … South[] America,”  which is a continent where half of the population speaks Portuguese, yet the same definition also includes a linguistic definition that only covers “Spanish cultures,” going so far as to include Europeans from Spain.
  • There is no category for Australian Aborigines or those from Brazil, Madagascar, and Cape Verde who retain an “ambiguous or confused” status.
  • OMB proposes creating a new category for those of Middle Eastern and North African (MENA) descent. But what, precisely there is that differentiates such individuals from other “Whites” is not explained. The Biden Administration does not explain why there should be a unique data category for the approximately 2 million Americans who self-report as Arab but not for the approximately 40 million Americans who self-report as German.

As Chief Justice John Roberts has put it, “It is a sordid business, this divvying us up by race.” The Biden Administration’s proposal inverts the Constitution and our non-discrimination laws, threatens individual equality, and presents a clear and present danger to the social and political cohesion of our ethnically and racially diverse polity. OMB’s proposed definitions are so imprecise and so irrational that they simply cannot produce more accurate and useful race and ethnicity data. Instead, it seems the Biden Administration’s purpose and goal is to create and institutionalize a hyper-partisan racial spoils system that may be tuned and manipulated to reward political friends and allies.   Therefore, America First Legal is calling for SPD 15 to be discarded, not revised.

Statement from Gene Hamilton, America First Legal Vice President and General Counsel:

“The Biden Administration’s obsession with race knows no bounds. And now, it appears ready to adopt new definitions of racial categories based on arbitrary factors to advance its agenda–such as how an American citizen ‘identifies.’ Did you study abroad in Japan, fall in love with the culture, and now want to ‘identify’ as Asian? Congratulations, you’re Asian. Their proposals are as absurd as they sound, and are being advanced for one reason–to advance a radical agenda that further divides American citizens. Under these standards, we all lose. Except Senator Elizabeth Warren, who can finally be recognized as the Cherokee she self-identified as to advance her own career,“ said Gene Hamilton.

Read the letter here.

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