By Harold Pease Ph. D
Responding to a lawsuit filed by 13 states led by Texas, U.S. District Judge Reed O’Connor issued a preliminary injunction that the Obama transgender bathroom executive order of May 12, 2016, “violated federal notice and comment requirements and contradicted existing law and regulations.” The states that did not wish to be included in the directive, he said, “can easily avoid doing so by state law.” The court objection came just before the new school year started. The Obama order mandated that transgender students in public schools be allowed to use bathrooms and locker rooms consistent with their chosen gender identity. Non-complying schools could be denied federal funds.
Liberty Under Fire had argued that the proper state constitutional response to the Obama directive should have been to ignore it and forward a letter to the president reminding him that transgender bathrooms, or anything like unto them, are nowhere listed in the enumerated powers of the Constitution Article I, Section, 8 and have not been added by way of amendment.
States should not sue the federal Government to obtain rights they already have under the Tenth Amendment of the Constitution because doing so undermines—potentially to oblivion—that Amendment. It reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
But the states did sue and although transgender bathrooms are now temporarily blocked, the “win” is a far weaker argument than the Constitution provides and the issue continues to damage the concept of federalism; that we have two governments, one over domestic affairs the other foreign, neither subservient to the other.
Federalism, that state law can easily avoid the directive, may have been implied by Judge O’Connor, but it is like putting out a house fire with a garden hose instead of the available fire truck. But notice what he objected to first, “the directive violated federal notice and comment requirements and contradicted existing law and regulations.” These are the weakest arguments possible and most certainly not Constitutional arguments. Nothing in the document speaks to federal notice or comment requirements. So, if these requirements had been in place the directive would have been constitutional?
Contradicting existing law and regulations is a better argument but one should keep in mind that regulations largely originate from unelected bureaucrats and if not challenged can reverse the original intent of the law. This president is attempting to rewrite the laws enacted by elected representatives of the people some 44 years ago. The 1972 anti-discrimination law prohibiting discrimination on the basis of sex, race, color, religion and national origin, itself subject to constitutional concerns, which resulted in Title IX, is a classic case of the federal government’s evolving interpretation. No one in congress when the law was passed intended it then to apply to transgender bathrooms—not one!!
In fact, because the courts have not used the full strength of the Constitution in previous arguments protecting us from federal overreach, it continues and the Constitution is endangered. What should be the constitutional argument? Three, far more powerful than those used by the judge, exist. First, the 10th Amendment previously cited.
Second, Article I, Section 8, wherein all federal powers were listed under two categories general welfare and common defense. Powers not listed remain with the states until changed through Article V—the amending process.
Third, the executive branch has NO authority to make law—any law!!!! The Constitution reads: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives”(Article I, Sec. I). Executive Orders are constitutional only when they cite a single, recently passed law of Congress, where that law needs a statement of implementation by the executive branch. Originally they were but interdepartmental directives.
A president can only suggest a need for new law in his State of the Union Address, and either sign or veto a law passed by Congress, which then, if vetoed, must be overridden by a vote of 2/3rds of both houses to become law. That is it. This is the law of the land and the constitutional procedure, this violated by President Barack Obama May 12, 2016, with his transgender bathroom decree.
Because Judge O’Connor used none of these arguments in defeating the Obama Transgender Bathroom Decree, neither likely will the 5th U. S. Court of Appeals in the coming months so a reversal is possible. Because both houses of Congress have not publically rebuked the president assuming unto himself unconstitutional law-making powers, he will continue law-making executive orders changing previous law to his interpretation. Because the states decided to sue, giving the federal government more authority to take from them their already existing authority, the feds will continue to do so and federalism, designed to protect the Constitution from such usurpation, will not be able to do so. But for the moment Judge O’Connor gave us a little constitutional win.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.