Since May, the U.S. Department of Education has held hostage school districts across the country by saying it may withhold precious federal funding if its Office of Civil Rights determines they have not complied with its (incorrect) interpretation of Title IX.
The “Dear Colleague Letter” that agency issued to schools in May declared that transgender identity is included within the term “sex” in Title IX, so any school that prevents a transgender student from using bathrooms or changing facilities that comport with the student’s gender identify, as opposed to his or her anatomy, is in violation of Title IX and jeopardizes federal funding.
Schools that had been offering reasonable accommodations to such students—which has been every school I’ve found in researching the issue—were left struggling with how to balance the needs of transgender students with the privacy concerns of every other student in their care.
Naturally, school boards and administrators have been disinclined to stand up to the department. Federal funding has a coercive effect on recipients. State legislators have largely shrugged their shoulders. What can they do in the face of the mighty federal government?
This Isn’t an Isolated Tyranny
Since the letter was released, in federal courts throughout the country several states, including Wisconsin, have attempted to resist implementing the guidance. The Center for Competitive Federalism recently filed an amicus curiae brief in one such case pending before the U.S. Supreme Court, arguing the department’s guidance should be afforded no deference. While the May letter is certainly the most well-known, it represents one of many that Obama administration agencies have issued over the last seven plus years.
While the efforts of states and other interested parties to defend against agency overreach is a promising defensive tactic, in the short term it does little to fundamentally reset the proper role of states and administrative agencies in our federal form of government.
Lost in the flurry of the campaign season, three weeks ago Reps. Rob Bishop (R-Utah) and Cathy McMorris Rodgers (R-Washington) introduced H.J. Res. 100. The resolution proposes an amendment to the U.S. Constitution to give states the authority to repeal a federal rule or regulation when ratified by the legislatures of two-thirds of the several states. At a time when policy makers are grappling with appropriate responses to an ever-expanding and intrusive federal government, the resolution represents an effort to reinsert the prerogatives of the states in our constitutional system.
The resolution obviously faces a very uncertain future. Recall that under Article V, any amendment to the Constitution first requires a proposal initiated by either Congress, by a two-thirds vote of both houses, or on the application of the legislatures of two-thirds of states. In this case, Congress is introducing the proposed amendment. Assuming a proposed amendment receives support from either Congress or the several states, it must then be ratified by three-fourths of the state legislatures or conventions.
The language of the proposed amendment is simple:
[A]ny Presidential Executive order, rule, regulation, other regulatory action, or administrative ruling issued by a department, agency, or instrumentality of the United States may be repealed in whole or in part by the several States. Such repeal shall be effective when the legislatures of two-thirds of the several States approve resolutions for this purpose that particularly describe the same provision or provisions of the Executive order, rule, regulation, other regulatory action, or administrative ruling to be repealed.
The authority would not include the power to repeal any law enacted by Congress or any federal court ruling. In addition to the language’s limit to rules and regulations, any repeal would still require approval of two-thirds of state legislatures, a high hurdle similar to the amendment process under Article V.
We Desperately Need This Conversation
While the political odds of the above language becoming the 28th amendment to the Constitution are low, it should not deter congressional leaders from championing what would represent a very real recalibration of political power between federal bureaucrats and state leaders.
Elected officials in the states should not be forced to collectively shrug their shoulders when the latest executive order, rule, regulation, other regulatory action, or administrative ruling is handed down by the bureaucratic gods of Washington DC.
The May Dear Colleague letter, which has been categorized as “significant guidance,” would presumably be considered “other regulatory action.” As such, it would be the very type of regulation or pseudo-regulation the proposed amendment would target. Instead of shrugging their shoulders, state legislative leaders would be provided with an opportunity to convince their colleagues and other states leaders to reject federal overreach.
If nothing else, congressional leaders should embrace the resolution as a means to begin an important conversation regarding founding American principles that over the course of the Obama administration have far too often been discarded as antiquated concepts that no longer work in our modern form of technocratic governance.
The proper balance between states and the federal government exists in a competitive arrangement whereby the powers not delegated to the federal government, nor prohibited to the states, are reserved to the states, or to the people. In other words, it is still worth fighting for the Tenth Amendment the founders felt so crucial to the long-term success of the country. In an election cycle where policy is discarded in favor of personality and vitriol, H.J. Res. 100 represents a refreshing and constitutionally sound policy solution.