Bench Memos

Law & the Courts

Obama Administration ‘Guidance’ on Bathrooms/Showers—Part 4

Even if the Obama administration’s radical rewriting of Title IX could be defended as a plausible interpretation of it, there are various administrative-law defects and liabilities in its bureaucratic diktat. I will outline some of them only briefly here:

1. The Obama administration’s guidance letter purports to set forth a legislative rule. Under the Administrative Procedures Act, such a rule should have been promulgated through notice-and-comment rulemaking, not by an informal letter.

2. Having failed to go through notice-and-comment rulemaking, the Obama administration is not entitled to have courts accord so-called Chevron deference to its misreading of Title IX.

3. As the complaint (see paragraph 87) filed by North Carolina’s Senate president and House speaker argues, because Title IX was enacted as an exercise of Congress’s so-called Spending Clause authority, any conditions that the federal government attaches to the states’ receipt of funds must have been set forth clearly and unambiguously. No one can claim that Title IX clearly and unambiguously sets forth the Obama administration’s reading.

 

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