Politics & Policy

The States Fight Back

(Photo Illustration: NRO; Image: Dreamstime)
The Obama administration’s attempt to dictate bathroom policy encounters great resistance.

The federal government’s increasingly oppressive treatment of state governments has not gone unnoticed. In fact, this treatment has prompted an interesting development. Following the Obama administration’s issuance of its May “Dear Colleague” letter relating to local school districts’ transgender-student policies, close to half of the states have made the decision to sue the federal government.

The Founders’ original understanding of federalism did not envision subservient states that exist only to serve the federal government. Nor did it contemplate overbearing states. It stood for a competitive arrangement, whereby the federal government exercised clearly enumerated powers while states remained within the sphere of reserved powers. And a competitive environment among the states ensured a limit on the growth of state government.

Unfortunately, this constitutional framework has been eroded at a frightening pace over the last seven years. As I recently noted, while the transgender letter issued by the Departments of Justice and Education is the most recent and well-known letter, the Obama administration has been very effectively utilizing federal agencies to bypass both Congress and state governments.

But since the administration’s issuance of the letter, a very encouraging development has occurred. Numerous states, local units of government, and parents have stood up and demanded the federal government defend the legal positions it has taken in the letter. And they are doing so not in the name of “states’ rights,” but in order to reestablish a constitutionally prescribed form of competitive federalism.

Even before issuance of the Dear Colleague letter, a group of Illinois parents stood up to the departments by filing a complaint in the Northern District of Illinois. After initially resisting the Department of Education’s demands to alter its policy relating to the use of bathrooms and changing facilities by a transgender student, the school district finally relented and entered into a “Locker Room Agreement and Restroom Policy” whereby transgender students were free to use any facility they chose.

A group of over 50 parents has fought back, claiming the agreement represents a violation of the Administrative Procedure Act because it exceeds the department’s statutory jurisdiction, authority, and limitations, is arbitrary and capricious, and is without observance of procedure. The complaint also alleges violations of the fundamental right to privacy, Title IX, and both the Illinois and the federal Religious Freedom Restoration Acts.

As the Texas attorney general pointed out, the administration’s ‘Dear Colleague’ letter represents an entire re-write of law.

The state of North Carolina also filed an action before issuance of the Dear Colleague letter. In a complaint for declaratory judgment, North Carolina brought suit against the federal government to enforce its law that requires public agencies to generally limit use of multiple-occupancy bathroom and changing facilities to persons of the same biological sex. In its complaint, North Carolina alleges that the Department of Justice was attempting to “unilaterally rewrite long-established federal civil rights laws in a manner that is wholly inconsistent with the intent of Congress and disregards decades of statutory interpretation by the Courts.”

Less than two weeks after issuance of the Dear Colleague letter, the state of Texas, joined by Wisconsin, Alabama, West Virginia, Tennessee, Arizona, Maine, Oklahoma, Louisiana, Utah, and Georgia, filed a major lawsuit against the departments in the Northern District of Texas. The states were joined by an Arizona and a Texas school district that have policies inconsistent with those demanded in the letter. As the Texas attorney general pointed out, the letter represents an “entire re-write of law.” The complaint alleges the guidance and interpretations of the letter exceed congressional authorization under the Administrative Procedure Act and violate both the Tenth and the 14th Amendments.

And while it is not litigation, several weeks after Texas filed its complaint, the Kansas Education Board adopted by a 10–0 vote a resolution that essentially ignores the directive from the Obama administration. Before the board’s vote, U.S. Representative Tim Huelskamp urged school leaders to ignore the guidelines.

Most recently, the state of Nebraska filed a complaint in the Nebraska District Court. Nebraska is joined by Arkansas, Kansas, Michigan, Montana, North Dakota, Ohio, South Carolina, South Dakota, and Wyoming. Similar to the Texas complaint, the Nebraska complaint alleges a violation of the Administrative Procedure Act and other federal laws by redefining the term “sex” under Title IX to include gender identity.

For those keeping track at home, this list of examples means 22 states are currently resisting implementation of the Dear Colleague letter’s directives, not on the basis of “states’ rights” or “nullification,” but upon a very sound legal theory that the actions of a few unelected bureaucrats in Washington, D.C., who failed to follow the clearly prescribed requirements of the Administrative Procedure Act should not go unchallenged and should in fact be declared illegal acts.

It’s not often that a Disney movie provides an apt analogy for the federal government’s aggressive interpretation of federalism, but in A Bug’s Life, an oppressive grasshopper dictatorship rules over a servile army of worker ants. Hopper, the leader of the grasshoppers, lectures the ants that “ideas are very dangerous things” and that they are “mindless soil shoving losers put on the earth to serve” the grasshoppers. Dramatically, Flik the ant appears and responds that ants are not meant to serve grasshoppers and have done great things. Specifically, year after year the ants manage to pick food for themselves and the grasshoppers. Flik proclaims that “ants don’t need grasshoppers,” but rather it’s the grasshoppers that need the ants. As Flik’s fellow ants begin to murmur, he notes that ants are a lot stronger than the grasshoppers say they are, and the grasshoppers “know it.”

No, the states are not “mindless losers” that exist to serve at the pleasure of the federal government. In fact, the states are not even “partners” in a cooperative system. The states are constitutionally created fixtures in our federal system. The efforts of conservative governors and attorneys general, taken on behalf of their respective states, should be applauded by those concerned with this administration’s pattern of governing by “a pen and phone.” Just as Flik was willing to stand up to the heavy hand of Hopper, so too should Texas, Wisconsin, and their other partners to the heavy hand of D.C., in the process demanding a return to the system of competitive federalism our founders created.

— Jake Curtis is an associate counsel at the Wisconsin Institute for Law & Liberty’s Center for Competitive Federalism. He previously served as an Ozaukee County supervisor, policy director for state senator Duey Stroebel, and a specially appointed assistant district attorney for Milwaukee County.

Jake Curtis is a Milwaukee lawyer and formerly served as a Department Chief Legal Counsel in the Walker Administration as well as an Associate Counsel at the Wisconsin Institute for Law & Liberty.


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