Despite the furor over President Trump’s executive orders, surprisingly little attention has been paid to the way the new president is shrinking the size of government, two regulations at a time. On Jan. 30, Trump signed an executive order requiring that for every new federal regulation passed, two must be rescinded.

When it comes to rolling back regulations that harm business, there are plenty of targets in the federal code. But if the new administration really wants to make a statement about the Constitution … if they want to reject the identity politics that defined the Obama presidency … there’s one rule in particular that should be at the top of the “rescind” list: 40 CFR Part 50, otherwise known as “Procedures for Reestablishing a Formal Government-to-Government Relationship with the Native Hawaiian Community.”

What’s wrong with this rule from the Department of the Interior? It would be easier to list what’s not a problem. To put it bluntly, if you thought the title was an unwieldy bit of political doublespeak, you’ve only just begun.

Mauna Kea rally held at the University of Hawaii at Manoa near Campus Center. 13 april 2015. photograph Cory Lum/Civil Beat

Why not begin with the fact that the rule was pushed through in the last months of the Obama presidency despite a myriad of practical and legal problems? The rule envisions a “government” of Native Hawaiians that depends upon a race-based vote — something forbidden by the Constitution and which was being litigated while the rule was under consideration. In fact, in Akina v. Hawaii, the Supreme Court upheld an injunction on a race-based election for delegates to a Native Hawaiian Constitutional Convention. And the sole reason for that convention was to start creating the Hawaiian “tribe” envisioned by the proposed rule.

The rule goes to immense effort to carve out a special government purely on race/ethnic origin. But doing so would violate the Constitution and could tear apart the social foundations of Hawaii. Considerations of how the regulation would affect every facet of life in the small multiracial state — from criminal law to child custody — were swept aside in order to cater to a specific political faction within the Hawaiian community.

And that may be the most troubling element of all. The Native Hawaiians who were supposed to benefit from the rule don’t support it. Public hearings in Hawaii were overwhelmed by individuals who opposed the rule and thousands of individuals submitted comments begging the federal government not to get involved in the issue. Polls show that support for a Native Hawaiian tribe (never more than a slim majority) has been steadily dwindling.

Now, many Hawaiians are rightfully objecting to the millions of dollars that have been wasted on a divisive and unconstitutional nation-building scheme. In fact, a 2015 survey found that Native Hawaiians overwhelmingly want the government agency that handles Hawaiian issues (the Office of Hawaiian Affairs) to concern itself with providing housing, jobs, education and health care rather than get involved in Hawaiian nation-building.

President Obama was so committed to identity politics that he pushed this regulation on a group that didn’t want it. President Trump would do well to listen to the Hawaiian people and rescind this rule. In doing so, he would be adhering to the spirit of his original order. Because when a group of citizens tells you that getting the federal government involved is only going to muck things up, you should listen.

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