The legal counterattack against the Obama administration’s latest round of lawlessness is now under way. Texas, Tennessee, Alabama, and eight other states filed suit today in Texas to block enforcement not just of the administration’s latest “Dear Colleague” directing publicly-funded colleges and schools to treat “gender identity” as a protected class under Title IX, but of multiple unilateral actions that have dramatically expanded the scope of both Title IX and Title VII.
The Complaint itself outlines much of what my colleagues and I have reported in National Review. Congress has never expanded Title IX or Title VII to include sexual orientation or gender identity as additional protected classes. Indeed, it has explicitly declined to do so. Moreover, the drafters of Title IX specifically and unequivocally indicated that it was not intended to prohibit schools and colleges from maintaining sex-segregated bathrooms and living facilities.
Rather than persuading Congress and the American people that legal change was necessary, the administration attempted to circumvent constitutional process by executive fiat — without even bothering to go through the formality of a public notice-and-comment process. It just declared the change, and now seeks to enforce the change.
As the case winds its way through the courts, it’s far from clear that the administration will have unanimous support from the legal Left. As I note in my post below, already brave liberal voices from elite law schools have raised questions about the Obama administration’s tactics. And those with foresight know that executive power, once expanded, is difficult to contain. A President Trump could issue his own edicts, and then the Left would suddenly rediscover it’s love for the separation of powers and the rule of law.
In the meantime, Texas and its allied states are once again on a collision course with the Obama administration, and this case — like its challenge to executive amnesty — looks destined for the Supreme Court. Congress has failed to adequately protect its prerogatives, but when Congress fails to lead at least we know we can count on the Lone Star State. Thankfully, America’s checks and balances extend far beyond Washington D.C.