George Orwell would be impressed. On Friday, the Obama administration issued a proclamation with all the force of law, requiring all public-education institutions in the land to allow boys to use girls’ bathrooms and locker facilities. They need only feel very strongly, on any given day, that they are really girls deep down inside.
Of course, the president can’t formally issue a law. This is still a democracy — superficially at least. So whenever Obama “changes the law,” as he likes to brag, the new law usually takes the form of something else. In this case, the new law took the form of “guidance” in a “dear colleague” letter issued jointly by the Department of Justice and Department of Education to school officials from sea to shining sea.
This prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status. . . . This guidance does not add requirements to applicable law, but provides information and examples to inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations.
This is hair-raising Newspeak, straight out of 1984. “The prohibition” in Title IX certainly does not “encompass discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.” The terms “sex” and “different sexes” are not ambiguous terms that Obama is free to interpret as he likes; they mean what Congress thought they meant in 1972.
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But here’s the really Orwellian part. In order to “change the law,” the Obama administration simply pretends that a 1972 act of Congress means whatever the latest progressive fashion trend requires it to mean — even though not a single member of Congress in 1972 would have supported the new “interpretation,” much less voted for a law expressly stating what the Obama administration now claims the law says.
The dear-colleague letter claims that it “does not add requirements to applicable law.” This is obviously false, and the administration knows it. The only reason that assertion is there is to protect the administration from the charge that it ignored requirements of the Administrative Procedure Act for issuing a new regulation. But, of course, this is precisely what the Obama administration has just done.
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But even if the administration had gone through the Administrative Procedure Act, this would still be an egregious act of “executive federalism.” Executive federalism is what happens when the president has no hope of getting his preferred law through Congress and instead uses some coercive lever to force the 50 states to implement his “law.”
The executive branch has figured out how to take control of state legislatures and state agencies — despite the Supreme Court’s clear insistence that the federal government cannot “commandeer” the states.
Alas, the Supreme Court has systematically confused form with substance. Its decisions prohibit the federal government from saying that the states “shall” do this or that. But even its conservative decisions, such as New York v. United States (1992) and Printz v. United States (1997), allow the federal government to “encourage” the states by punishing those that don’t implement its policy preferences.
The Environmental Clean Power Plan is a perfect example of this circumvention of a clear limit on federal power. Obama’s original cap-and-trade scheme failed to pass Congress, so instead his EPA enacted a rule that requires all the states to adopt something like the disastrously wasteful renewable-energy regulations of California and New England.
Compliance is voluntary, of course. But notice the gun to the head.
By its own admission, the EPA has no power to regulate the electrical grid in the states. But because the EPA can regulate coal-plant emissions, it can regulate coal plants out of existence, and that is the gun to the head. EPA essentially says to the states: Either adopt the electrical regulations we want you to, which by the way we have no authority to impose on you, or we will shut down your coal plants and leave you without a third of your electrical power capacity, and if people die because they can’t heat their houses in the middle of winter, it’s your problem.
Obama’s Orwellian transgender “guidance” boils down to this same tactic. As National Review’s David French notes, the administration has denied that the letter is a threat, noting that it is mere “guidance.” But that’s just Newspeak. The whole point of the letter is to warn school administrators that they will lose crucial federal funds if they don’t comply with the new rule.
The reason for the Newspeak is that Federal courts still require the administration to at least pretend that it’s not taking over the states through dictatorial proclamations. The dirty secret is that the federal courts will let the president do precisely that, so long as he pretends to be doing something else.
The president is no longer even trying to govern according to a national consensus of what the Constitution means.
Americans should beware. With the connivance of the federal courts, Congress has already delegated the president enough authority to rule by decree as long as he stays even somewhat close to the boundaries of those sweeping delegations. But through executive federalism, the president doesn’t even need to stay within those limits. The president now systematically uses the machinery of state government to enact national laws entirely outside the constitutional process.
The very structure of our Constitution — its separation of powers among three branches, its separation of powers between federal and state governments, and its insistence that the federal government has only limited and enumerated powers — is dissolving before our eyes. It’s being replaced by a new Constitution that says the progressive political coalition can have whatever it wants.
The president is no longer even trying to govern according to a national consensus of what the Constitution means. The Supreme Law of the Land is now little more than an exercise in exaltation of the latest progressive fashion trend. Step by step, the progressives are creating a dictatorship according to their whims and fancies.Every state government should follow the lead of Texas governor Greg Abbott, who announced that Texas would fight the new rule. Texas is set to instruct schools to disregard the federal proclamation. That’s the right course. If the administration carries through on its implied threat and moves to cut education funding, the state should sue on behalf of those school districts. In court, the states should wave high the Supreme Court’s decision in the Obamacare case, which warned that the federal government cannot hold a “gun to the head” of the states.
And if the courts won’t stop the administration’s lawlessness, the states will have to fight back by more drastic measures, including blanket refusal to accept any more federal money or the refusal to participate in any more federal regulatory schemes. The federal government will impose a fearsome penalty for such dissent. But as Obama has done such a good job of showing, that fearsome penalty is still better than the tyranny of progressive fashion trends.
— Mario Loyola is a senior fellow at the Wisconsin Institute for Law and Liberty.