Just when you thought the lawlessness of the most lawless administration in history couldn't get worse, the Department of Justice files another legal brief.
In response to a class action lawsuit by as many as 3,500 ready-to-hire air traffic controller applicants whose names were "purged" so the Federal Aviation Administration could hire based on race, federal lawyers asserted that the administration is immune from liability for denying constitutional equal protection because of sovereign immunity. In other words, they claim protection by the legal maxim rex non potest peccare, which means, "the king can do no wrong."
Beginning in 1991, the FAA collaborated with universities and colleges to create 36 accredited degree programs in diverse Collegiate Training Initiative schools. Then, the FAA hired those with CTI program degrees, references from CTI administrators and "well qualified" rankings on the challenging Air Traffic Selection and Training exam — a validated, proctored, eight-hour, computer-based test.
In 2013, however, to achieve racial diversity — notwithstanding that nearly 12 percent of those attending CTI programs were African Americans — the FAA abandoned that program, "purged" its files of the 2,000 to 3,500 CTI graduates, and began hiring any English-speaking citizen with a high school diploma, while screening new applicants to ensure their racial "diversity."
In late December 2015, Mountain States Legal Foundation responded with a class action lawsuit in Arizona federal district court on behalf of those who satisfied the FAA's time-tested and rigorous tests for prospective air traffic controllers, but whose names were purged after the FAA announced hiring plans favorable to minorities. The lawsuit charges violation of the equal protection component of the due process clause of the Fifth Amendment and Title VII of the Civil Rights Act of 1964.
The class is represented by Andrew Brigida, who holds two B.S. aviation degrees from Arizona State University and scored 100 percent on the Air Traffic Selection and Training exam. Mountain States Legal Foundation filed an amended complaint in April 2016 and a second amended complaint in August 2016, following congressional action that did nothing to remediate the constitutional and statutory injuries suffered by its clients.
That is when federal lawyers responded that their clients were like "kings."
Everyone is familiar with William Blackstone's famous aphorism, "That the king can do no wrong, is a necessary and fundamental principle of the English constitution." But what does that have to do with us on this side of the Atlantic Ocean, we who revolted against a "God-King" with the words "all men are created equal," broke free and created a constitutional Republic?
As it turns out, precious little. In 1996, Justice John Paul Stevens wrote that sovereign immunity is a judge-made doctrine that has been "thoroughly discredited" because it is founded on the notion "that a divinely ordained monarch 'can do no wrong.'"