Those of you who follow this blog know of the special place in my heart for Hawaiian constitutional issues.  Cato has even filed several Hawaii-related amicus briefs; here’s my post about the latest one, last month.  This is in part because thinking about the Constitution and individual liberty is even more fun in the context of palm trees, trade winds, and tiki bars, but more than that, developments in Hawaii tend to get overlooked or dismissed as parochial and “not really” relevant to the American project.

Unfortunately, that sort of benign neglect plays into the hands of those who want to wreak all sorts of havoc with our constitutional order.  And once those who don’t care about limited government, individual liberty, and equality under the law gain a toehold anywhere, Honolulu as much as Hartford, that creates a dangerous precedent — a political and jurisprudential tsunami, if you will, that threatens to swamp the mainland.

Such is the case with the infamous Akaka Bill (which I most recently covered in a blogpost that links to my previous work on the subject).  This bill, introduced in every Congress since 2000, would create a race-based governing entity that would negotiate with the federal and state governments over all sorts of issues — effectively carving out a system of racial spoils. 

Now, Hawaii’s senators, Daniel Akaka and Daniel Inouye, have long said that their pursuit of this legislation would always be above-board and transparent… until a couple of weeks ago when Inouye, as chairman of the Senate Appropriations Committee, had a sentence inserted into the massive Interior Department funding bill allowing the federal government to recognize Native Hawaiians in the same way that American Indians and Native Alaskans are recognized (but without immediate federal benefits).  This, combined with a state resolution labeling the “Native Hawaiian people” as the only indigenous Hawaiians, is part of a piecemeal strategy to get the Akaka Bill in through the backdoor.

For more coverage of these developments, see this report, as well as these two articles ($).  For Hawaii’s fuzzy relationship with the Voting Rights Act, see this article.  For reasons on why this is all not just sneaky but a terrible idea — and unconstitutional — again, see my previous writings. 

At base, Hawaiians have a very different history and political sociology from the tribes that were accommodated in our (dubious and counterproductive) Indian law, which itself is a unique compromise with pre-constitutional reality.  It would be a shame to destroy that beautiful state’s spirit of aloha (welcome).

Sneaking Race-Based Government Through the Tropical Back Door is a post from Cato @ Liberty - Cato Institute Blog

Hawaii continues to think that it’s not quite part of the United States and thus not fully subject to U.S. law.

In the 2000 case of Rice v. Cayetano, the Supreme Court struck down race-based voting requirements for certain Hawaii state officers because government schemes that distinguish between “native Hawaiian” and “Hawaiian” are racial classifications that must pass “strict scrutiny” to be deemed constitutional; they must be narrowly tailored to achieve a truly “compelling” purpose (a standard nearly impossible to meet). Yet that exact same category of “native Hawaiian” — whose frighteningly archaic definition is “any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778” — was used in the Hawaii Homes Commission Act to distinguish those who can hold certain leases that are subject to little or no property tax.

A group of Hawaiians who do not meet the state’s definition of “native Hawaiian” and therefore suffer under the explicitly race-based law decided to challenge these property-tax exemptions. After paying their taxes, these plaintiffs sought refunds on the grounds that the classification scheme violates the Fourteenth Amendment’s Equal Protection Clause.

The Supreme Court of Hawaii, however, ruled that they didn’t have standing — a legal doctrine that determines who can bring a claim — to challenge the taxes on the ground that they had not yet asked for the leases (for which they were indisputably ineligible due to not having enough “blood of the races” flowing through their veins). A lower state court had even ruled that the classification was not race-based—that it merely distinguishes leaseholders and non-leaseholders, even though Hawaiians without the sufficient “blood quantum” cannot be leaseholders!

The group of taxpayers now seek review in the U.S. Supreme Court. Cato, joined by the Pacific Legal Foundation, the Grassroot Institute of Hawaii, the Goldwater Institute, and Professor Paul M. Sullivan, filed a brief urging the Court to take the case and rectify Hawaii’s explicitly unconstitutional taxation scheme. We argue that, after Hawaii’s state judiciary refused to address the issue of racial discrimination head-on, only the U.S. Supreme Court is in a position to guarantee the constitutional protections that Hawaiians have lived under for over a century (since Hawaii became a territory). Only by taking this case and overturning the racially charged definition can the Court continue to ensure that Hawaii is a state that “neither knows nor tolerates classes among citizens.”

The Supreme Court will likely decide by the end of the year (or in early 2012) whether to hear this case, Corboy v. Louie.

Race-Based Tax Exemptions Are Unconstitutional is a post from Cato @ Liberty - Cato Institute Blog

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:

1. 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.
2.  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.
3. 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.
4. 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.”

Lame Duck Won’t Create Race-Based Government After All is a post from Cato @ Liberty - Cato Institute Blog

Throughout history, people have fought over beaches, including in the legal arena. In the latest case in which Cato has filed an amicus brief, a state has once again redefined property rights to take possession of highly-valued beachfront property.

In 2003, Hawaii passed Act 73, which took past and future title to accretions (the slow build-up of sediment on beaches) from landowners and gave it to the State, changing a 120-year-old rule. While waterlines are unpredictable, the original rule — common to most waterfront jurisdictions — helped establish legal consistency. Indeed, without such a rule, beachfront property becomes beachview property in just a few years.

In response to Act 73, homeowners sued the state, claiming that the law violated the Takings Clause of the Fifth Amendment or, in the alternative, the Due Process Clauses of the Fifth and Fourteenth Amendments. The state appellate court held that compensation was owed only for the accretions that had accumulated before Act 73′s enactment because the right to subsequent accretions had not “vested” (the legal term for when an expectation becomes an actual property right). Hawaii’s Supreme Court declined to review that ruling, so the property owners asked the U.S. Supreme Court to do so.

Cato, joined by the Pacific Legal Foundation, filed a brief supporting that petition and argues that the appellate court’s decision was contrary to long-standing definitions of waterfront property rights. Our brief highlights the increasing need for the Court to establish and enforce a judicial takings doctrine.

More and more states are using backdoor tricks — like legislative “guidelines” and judicial creativity — to take property in violation of constitutional rights: This Hawaii case is distressingly similar to last term’s Stop the Beach (in which Cato also filed a brief). In that case, Florida took property by adding sand to the beach and then laying claim to the newly created land — in essence asserting that property that was defined by contact with the water (in technical terms, “littoral” or “riparian”) had no right to contact the water. The Court ruled that while Florida’s actions did not rise to the level of a judicial taking, a large enough departure from established common-law rules could constitute a constitutional violation.

In this latest brief, we highlight both the largeness of Hawaii’s departure from established law and the spate of such actions in recent years — which circumstance calls out for Supreme Court review.  The case is Maunalua Bay Beach Ohana 28 v. Hawaii and the Court will decide later this fall whether to take it up.

If Only Hawaii’s Government Were as Beautiful as Its Beaches is a post from Cato @ Liberty - Cato Institute Blog

My Washington Examiner column this week begins with a look back at the Disco Era:

In his high school yearbook photo, President Barack Obama sports a white leisure suit and a Travolta-esque collar whose wingspan could put a bystander’s eye out. Hey, it was 1979.

Maybe that explains the rest of young Barry’s yearbook page, with its “still life” featuring a pack of rolling papers and a shout-out to the “Choom gang.” (“Chooming” is Hawaiian slang for smoking pot.)

Survey data suggest some 100 million Americans have tried pot, including political elites and drug war supporters Bill Clinton, Al Gore, Newt Gingrich and Sarah Palin. So the point here isn’t to play “gotcha” by calling the president out on some harmless fun three decades ago. It’s to ask why he isn’t doing more to change a policy that treats people engaged in such activities as criminals.

As I note in the column,

in his new National Drug Control Strategy [.pdf], Obama “firmly opposes the legalization of marijuana or any other illicit drug” and boasts of his administration’s aggressive approach to pot eradication. Watch your back, Choom Gang.

This may present Obama with a serious moral dilemma if and when California votes to legalize recreational use of marijuana this November. (More here in this podcast).

Barack Obama’s War on ‘Chooming’ is a post from Cato @ Liberty - Cato Institute Blog

Tad DeHaven does a fine job of exposing the mere window dressing that are the cuts in President Obama’s FY 2010 budget proposal. I’ll not add much to that other than to say that while Tad gives Obama’s predecessor a deserved hard time for his own paltry efforts to rein in spending, President Bush’s Education Department  budgets looked downright Draconian compared to what the Obama team just produced.

Bush’s FY 2009 ED budget proposal included nearly $3.3 billion in cuts, generated by eliminating 47 programs. Given the dismal performance of all federal education efforts, this was obviously far too little, but compare it to Obama: His proposed budget would cut just twelve measly programs from ED’s budget, for a puny savings of about $551 million. And if that doesn’t give you a powerful feel for just how unserious this administration seems to be about saving taxpayers even a thin dime or two, look what program is not among those proposed to be cut:

EDUCATIONAL, CULTURAL, APPRENTICESHIP, AND EXCHANGE PROGRAMS FOR ALASKA NATIVES, NATIVE HAWAIIANS, AND THEIR HISTORICAL WHALING AND TRADING PARTNERS IN MASSACHUSETTS

The purpose of this program is to develop culturally based educational activities, internships, apprentice programs, and exchanges to assist Alaska Natives, native Hawaiians, and children and families living in Massachusetts linked by history and tradition to Alaska and Hawaii, and members of any federally recognized Indian tribe in Mississippi.

For this whale of a waste – and so many others in the ED budget – to have survived portends nothing but ill for the nation. Nothing but ill.

A Whale of a Disgraceful ED Budget is a post from Cato @ Liberty - Cato Institute Blog

As Tad DeHaven mentioned the other day, CNN reported recently that business owners and residents on Hawaii’s Kauai island got together and made repairs to a state park — in eight days — that the state had said would cost $4 million and might not get done for months. Businesses were losing money since people couldn’t visit the park, so they decided to take matters into their own hands.

“We can wait around for the state or federal government to make this move, or we can go out and do our part,” [kayaking company owner Ivan] Slack said. “Just like everyone’s sitting around waiting for a stimulus check, we were waiting for this but decided we couldn’t wait anymore.”…

“We shouldn’t have to do this, but when it gets to a state level, it just gets so bureaucratic, something that took us eight days would have taken them years,” said Troy Martin of Martin Steel, who donated machinery and steel for the repairs. “So we got together — the community — and we got it done.”

It reminds me of the story 20 years ago of how Donald Trump got tired of watching the city of New York take six years to renovate a skating rink, so he just called up Mayor Ed Koch, offered to do it himself, and got the job done in less than four months. He got so enamored of the skating rink that he ended up getting the concession to run it.

And it also reminds me of the stories in James Tooley’s brand-new book, The Beautiful Tree: A Personal Journey Into How the World’s Poorest People Are Educating Themselves, which talks about how poor people in China, India, and Africa have set up schools for their children because government schools were absent or of poor quality.

If government would get out of the way, businesses, churches, charities, and individuals would solve a lot more social problems.

Not Waiting for Government is a post from Cato @ Liberty - Cato Institute Blog

The spirit of 1776 is alive and well in Kauai:

Their livelihood was being threatened, and they were tired of waiting for government help, so business owners and residents on Hawaii’s Kauai island pulled together and completed a $4 million repair job to a state park — for free.

“We can wait around for the state or federal government to make this move, or we can go out and do our part,” Slack said. “Just like everyone’s sitting around waiting for a stimulus check, we were waiting for this but decided we couldn’t wait anymore.”

It’s amazing what a little private initiative and economic incentive can do.  Contrast this story with that of a bridge being built to connect Microsoft campuses in Redmond, WA with federal “stimulus” money.

Hawaiians Don’t Wait for Government – Rebuild Road is a post from Cato @ Liberty - Cato Institute Blog

Today the Supreme Court unanimously ruled that the resolution Congress passed in 1993 to apologize for U.S. involvement in the overthrow of the Hawaiian monarchy—a determination that remains controversial among historians—did not affect Hawaii’s sovereign authority to sell or transfer the lands that the United States had granted to the State at the time of its admission to the Union.  In an opinion by Justice Alito, the Court correctly explained that the words of the Apology Resolution were conciliatory and hortatory, creating no substantive rights—and indeed the resolution’s operative clauses differ starkly from those which provided compensation to, for example, the Japanese-Americans interned during World War II.

Importantly, the Court also noted that it would “raise grave constitutional concerns” if any act of Congress purported to cloud Hawaii’s title to sovereign lands so long after its admission to the Union.  This last point is perhaps most important to the ongoing debate over the “Akaka Bill,” which would create a race-based entity to extract political and economic concessions from the state and federal governments on behalf of ill-defined “native Hawaiians.”  It is delicious irony that Hawaii’s attorney general, Mark Bennett, an Akaka Bill supporter, secured this victory.

Just as Hawaii is now allowed to develop state lands for the benefit of all its citizens, hopefully Congress will in future refrain from inflaming racial divisions and instead treat all Hawaiians, regardless of race, with the legal equality to which they are entitled.

Further Cato materials on the above: Here’s our brief in the case, Hawaii v. Office of Hawaiian Affairs.  Here are articles I wrote on the case and on the on the Akaka Bill.  Here is a write-up of a debate I had at the University of Hawaii last month.  Finally, here is a podcast I did for the Grassroot Institute (Hawaii’s free-market think tank) — where, among other things, I correctly predicted the Court’s vote today and the scope of its opinion.

Court Embraces the Spirit of Aloha is a post from Cato @ Liberty - Cato Institute Blog