When the SCOTUS came out with their EPA slapdown at the end of this term, I predicted that this decision would embolden lower courts to challenge federal agency actions. We all remember Obama’s famous “pen and a phone” approach to power. In the big picture of constitutional law, it’s clear that the conservative or broadly federalist majority on the SCOTUS wasn’t amused by the quip—and certainly not by the reality.
I’m not going to go into the legal details here—I haven’t read the decision. I don’t doubt that this case is distinguishable from the EPA case in various ways. But that’s not the real point. The real point, the big picture, is that judges will be looking at the broad philosophy of separation of powers issues with renewed rigor, and will be more inclined to accord federal agencies and presidential guidance less deference when that guidance conflicts with the legitimate interests and authority of other parts of our constitutional order. This will obviously apply to new cases, but the EPA ruling will also provide judges with food for thought in cases that are already before them.
Now comes the news that a federal judge has ruled in favor of 20 state AGs—the judge refused to dismiss the suit and approved a temporary injunction:
Judge blocks Biden admin directives on transgender athletes, bathrooms
At issue was what is variously termed “guidance” or a “directive” in the news accounts—classic “pen and phone” stuff. The focus in this case is on the rights of states to enforce their own laws. We find a fuller account in the UK Daily Mail:
A judge in Tennessee has temporarily banned two federal agencies from enforcing directives issued by the Biden administration that extended protections for LGBTQ people in schools and workplaces, like allowing transgender people to use the bathroom of their choice.
US District Judge Charles Atchley Jr. on Friday ruled for 20 state attorneys general who sued last August claiming the Biden administration directives infringe on states' rights.
The ruling could prevent students from participating in sports based on their gender identity or requiring schools and businesses to provide bathrooms and showers to accommodate transgender people.
Atchley, appointed by President Donald Trump in 2020, agreed with the attorneys generals' argument and issued a temporary injunction preventing the agencies from applying that guidance on LGBTQ discrimination until the matter can be resolved by courts.
'As demonstrated above, the harm alleged by Plaintiff States is already occurring - their sovereign power to enforce their own legal code is hampered by the issuance of Defendants´ guidance and they face substantial pressure to change their state laws as a result,' Atchley wrote.
…
The directives regarding discrimination based on sexual orientation was issued by the US Department of Education and the Equal Employment Opportunity Commission in June following a landmark civil rights decision by US Supreme Court in 2020 that, under a provision called Title VII, protects gay, lesbian and transgender people from discrimination in the workplace.
The Department of Education guidance from June 2021 said discrimination based on a student's sexual orientation or gender identity would be treated as a violation of Title IX, the 1972 federal law that protects sex discrimination in education.
…
The state attorneys general contend that the authority over such policies 'properly belongs to Congress, the States and the people.'
The education policy carried the possibility of federal sanctions against schools and colleges that fail to protect gay and transgender students.
The attorneys general argued that a delaying a legal review of the directives would 'cause them significant hardship, as Defendants would be allowed to use the `fear of future sanctions´ to force `immediate compliance´ with the challenged guidance,' Atchley wrote.
'The Court finds that Plaintiffs have shown a credible threat of enforcement,' Atchley wrote. 'Plaintiffs highlight that private litigants are relying on Defendants´ guidance to challenge Plaintiffs´ state laws.'
Atchley noted that the US Department of Education has filed a statement of interest in a West Virginia lawsuit taking a position that Title IX prohibits the state from excluding transgender girls from participating in single-sex sports restricted to girls.
The order comes as transgender issues in education and especially youth and college sports have become a hot button topic.
Expect many more cases of this sort, covering just about every aspect of federal regulatory agency action. I like this, heading into campaign season.
Well, the UK Daily Mail... what an absurd, tendentious "article" larded with begging the question:
1. "...directives issued by the Biden administration that extended protections for LGBTQ people in schools and workplaces, like allowing transgender people to use the bathroom of their choice." Oh the humanity! I insist upon being able to deviate from centuries of societal norms no matter how it affects the great majority. CRY SANCTUARY!
2. "The ruling could prevent students from participating in sports based on their gender identity." Ibid #1
3. "The education policy carried the possibility of federal sanctions against schools and colleges that FAIL TO PROTECT gay and transgender students." Do the schools allow gays and transgender students to be beaten? Or do they disallow a tiny minority from destroying the rights of a large majority (girls and women)? Ibid #2
One has to admire the steadiness of hand that DM author demonstrates in assuming moral and ethical rectitude--and even normalcy--of the tiny slice of insane dystopian freaks that the Biden administration is glorifying. What's next?