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Texas’s War Against Washington DC


The number of Texas suits against the federal government is growing. One might—accurately—deduce that Texas is presently not thrilled with Washington DC.

We will need to call the new suit filed against the United States in the Northern District of Texas something besides Texas v. United States in the popular media, as the suit comes while we wait for the Supreme Court opinion in United States v. Texas, in which the Obama administration issued regulatory directives that amend U.S. law on immigration. We are also waiting for the opinion in the Texas abortion regulations case this term. Both are popular news cases, although the latter is called Whole Women’s Health v. Hellerstedtso is less likely to cause confusion when the press refers to it properly.

In the newly filed lawsuit, 11 states, a state governor, and assorted school districts in Texas and Arizona have brought suit against the federal government based upon the open school bathrooms guidance the Obama administration issued two weeks ago. Adding to the title confusion, the basic argument for the TX v. U.S. bathroom and the U.S. v. TX immigration suits is essentially the same, although I only got hints of the underlying arguments in the New York Times coverage.

In most everyone else’s rush to post the announcement of “states sue federal government”—again—on their websites, this case is about open school bathrooms and Texas Gov. Greg Abbott nonsensically declaring that “Obama is not a king.” Those are very click-y details, and distinguishing the cases as the school bathroom or young immigrants lawsuit offers reporters many options for emotional hooks.

But those reporters avoid addressing the legal issue. Whether this is because they do not know of or understand that legal issue (Ben Rhodes, please call your office) or because they have seized the opportunity to make a conservative governor’s comment seem like royal straw man nonsense by not offering the context, we can judge case by case.

The legal issue is actually simple. These lawsuits are about the extent of executive power. Specifically, President Obama is assuming powers that he does not have under our republican (little-r) constitution.

Background for the New Texas v. United States

I published a brief legal explainer in the United Kingdom when the administration issued the new Title IX instructions two weeks ago.

Until recently, Title IX was most (in)famous for regulating collegiate sports. Schools had quickly complied with accepting women in equal number, but athletic scholarships became an equality issue.

In April of 2014, however, the US Department of Education, under pressure from LGBT special interest groups, released new guidelines for Title IX compliance, which stated, “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation.” The Equal Employment Opportunity Commission, the executive branch committee that makes rules for CRA 1964, followed suit with similar rule changes in July 2015….

The effects are ripping through our daily business but there has been no change in the law. Congress did not debate gender identity discrimination. It did not pass a new bill that the President then signed into law. No. An unelected committee in the Department of Education expanded the definition of “sex” under Title IX and set off this chain reaction.

Shorter: the executive branch is making law rather than enforcing law.

The Title IX collision course is but one example of executive overreach. The immigration case is another. In that case, President Obama made law by essentially repealing an existing law.

The extent of executive power was also the legal issue underlying the Environmental Protection Agency cases decided last summer. In that instance, Congress directed the EPA in the Clean Air Act to make certain decisions about pollutants. (Having Congress authorize an executive committee on specific issues is one of the innovations in administrative law designed to curb the problems that executive lawmaking presents.) The Supreme Court found that the EPA didn’t follow Congress’s instructions. It was one of Scalia’s last opinions.

The Surging Executive Branch

Why all these cases now? Administrative law has been controversial for some time, but this is a notable cluster of cases that marks the implosion of the separation of powers.

In a nutshell, Congress, largely in Republican control since the early ’90s, is so busy protecting its members’ and the parties’ interests that it is not carrying out its obligation to make law as the Constitution directs. Congress has failed to lead, so the executive and judicial branches are assuming the lawmaking function. In fact, that is one of the U.S. government’s arguments in the immigration case: Congress did not act on a pressing matter, so the president must.

The executive branch is writing law through directives, orders, and regulations. The judicial branch is fixing poorly written laws churned out by representatives who are too irresponsible to even read before they vote. Of course, once the judicial branch rewrites the law, the executive branch then issues directives, orders, and regulations as it pleases. We are watching that scenario play out in Obamacare, which is one of the reasons some are not optimistic that the Supreme Court will check executive rule-making power in the current cases.

Worse still, the court has allowed the inversion of state and federal power. According to the Constitution, any powers not granted to the federal government belong to the states or the people, but caselaw since Franklin Delano Roosevelt’s era has ignored the Ninth and Tenth Amendments so effectively that the federal government comfortably argues states are wrong even to enforce existing federal law that the president does not favor—which is the crux of the U.S. v. Texas immigration case.

The courts have failed to uphold the Constitution. The legislature has punted. The executive is surging. All too quickly, there might be no law but the federal executive will. Just the news one wants to hear in a Donald Trump versus Hillary Clinton election year, no?

Emotions run high over open school bathrooms, deportation of young immigrants, health care, and mercury emissions. The press will focus on those things. It’s good for clicks and makes people feel better for doing the right thing, however the pop elite define “right” at any given moment.

But those are details. The issue remains: our executive does not have the power to make law. Or, as Abbott put it, Obama is not a king.