On May 4, 2016, a deputy assistant attorney general of the United States mailed a demand letter to the governor of North Carolina instructing him to “not comply with or implement” North Carolina law. This letter represents the Obama Administration’s official declaration that North Carolina is the new frontline in the post-Obergefell battle for LBGT exceptionalism.
Cloaked in an incomplete and misleading civil rights narrative (leading the average person to believe that Jim Crow is back in North Carolina), the United States Department of Justice is taking very aggressive action to advance its pro-LGBT ideology. On Monday, the United States attorney general sued North Carolina (and several other officials and institutions) in an effort to open all public restrooms, locker rooms, dorm rooms, prisons, university athletic teams, etc., to all individuals without regard to their biological sex. The federal government contends that North Carolina’s recently enacted Public Facilities Privacy and Security Act (commonly known as H.B.2) violates Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments adopted in 1972, and the Violence Against Women Reauthorization Act of 2013.
Recognizing his duty to enforce North Carolina law, and the importance of the policies and constitutional issues involved, the governor of North Carolina sued the United States. In his complaint, Governor McCrory contends that the Department of Justice’s demands are a “baseless and blatant overreach” of federal executive power.
Separately, the president pro tempore of the North Carolina Senate, together with the speaker of the North Carolina House of Representatives, also sued the United States. In their complaint, the president and the speaker contend that the Department of Justice’s demands unlawfully interfere with the sovereign right of North Carolina’s citizens to self-governance. They further contend that the demand represents an abuse of executive power manifesting “ideological extremity and utter unworkability” of an “astonishing” degree.
Much has already been written about this new legal conflict, and some of the available commentary is excellent. Ed Whelan, in particular, has thoughtfully exposed many of the serious substantive questions and issues in the Obama Administration’s outrageous war on North Carolina. His commentary demonstrates that the Department of Justice’s claim that H.B.2 reflects a “pattern and practice” of “sex” discrimination under Title VII is incoherent. North Carolina’s law does not discriminate on the basis of “sex” (even if one assumes that the word “sex” as used in Title VII really means “gender identity”). In reality, the Department of Justice’s argument is akin to an affirmative action claim. If successful, the interpretation of civil rights laws will require government actors to privilege “gender identity” in their reasoning about schools, prisons, and other public accommodations.
Others have questioned the sanity of the legal arguments now propounded by the Department of Justice, especially in light of the clear conflict between the rights claims of transgendered individuals and other citizens. Granting, for the sake of argument, that the Department of Justice is correct in its interpretation of Title VII and Title IX, it is by no means clear that transgendered rights are absolute and should trump other citizen’s constitutional rights of privacy, free expression, or religious freedom. As Governor McCrory’s complaint observes, North Carolina’s law attempts to strike a balance between these competing rights and interests by providing accommodations in public facilities for transgendered individuals. But this balance is not what the Department of Justice wants to secure. Instead, it wants transgender rights to trump all other rights claims. This is a very significant shift in policy. One would rightly assume that such a shift would require an act of Congress, not just the pen of a bureaucrat.
But the North Carolina litigation is about much more than access to restrooms. The issues now before the federal courts in North Carolina require careful examination of a number of constitutional concerns fundamental to our constitutional system of government.
Federalism and the Authority of the States
What would the framers of the US Constitution say about a deputy assistant federal official sending a governor a demand letter ordering the governor to cease and desist enforcing state law? Although questioning the power of federal officials is not popular, it is a necessary task for any constitutional lawyer. It seems that many now assume the federal government exists to tell the states what to do and how to do it. This is remarkable in light of our nation’s constitutional history.
Prior to ratification of the Constitution, many of our nation’s founders were very concerned that the proposed federal government would accumulate power to itself. Many feared that the federal government would ignore or suppress the policies of the separate “free and independent” states.
James Madison famously confronted the Anti-Federalists’ concerns in Federalist 45, writing that “the powers delegated by the proposed constitution to the federal government, are few and defined. Those which are to remain in the state governments are numerous and indefinite.” In other words, Madison would assume that North Carolina has nothing to fear from the federal government because the federal government’s powers are limited to matters of national concern, such as national security and foreign commerce.
Thus, it seems reasonable to assume that even Madison—a defender of the federal government—would take issue with a deputy assistant federal official issuing a mandate to a state governor. He wrote, “the powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state.” Considering this, it seems obvious that even the Federalists, like Madison, considered it to be within the authority of state governments to determine who is qualified to enter the men’s room in Raleigh.
Admittedly, much has changed since Madison wrote these words. But, as a matter of law, the principle of limited federal power has not. Even though most assume federal supremacy in all things, it remains necessary for the federal government to justify each and every one of its actions by pointing to an enumerated power. The Tenth Amendment continues to reserve powers to the states unless they are enumerated among federal powers.
Thus, the most fundamental question regarding the legality of the Department of Justice’s demands is simply this: what enumerated power allows you to demand that the governor of the state of North Carolina cease and desist enforcement of North Carolina’s laws? What constitutional authority allows the federal government to tell North Carolina it must allow individuals to enter restrooms on the basis of their chosen gender identity rather than on the basis of their biological reality?
Altering the Scope of Constitutional Rights
The Department of Justice contends that it is enforcing federal civil rights laws. As applied to North Carolina, however, one should not assume that the recent demands of the Department of Justice rest on an enumerated federal power. Undoubtedly, the Department of Justice will respond by pointing to (at least) three enumerated powers: congressional power to enforce section one of the Fourteenth Amendment; congressional power to regulate interstate commerce; and congressional power to regulate federal spending. The burden will be on the Department of Justice to establish that its enforcement action rests upon a valid, enumerated power.
Regarding the civil rights claims, the complaint filed by the state senate president and house speaker directly questions the constitutional authority of the Department of Justice. Paragraph 72 of the complaint argues that
because Congress’s decision to extend Title VII to the states rested solely upon Section 5 of the Fourteenth Amendment, any requirements imposed on the states under the guise of that statute must be directed at preventing or remedying violations of the federal Constitution, and must be both “congruent with and proportional” to that goal.
The congruence and proportionality analysis is required by the Supreme Court’s decision in City of Boerne v. Flores. Justice Kennedy, writing for the Court, established this test as the constitutional standard determining when Congress may legislate to direct the steps of the states (and, in effect, when the Department of Justice may enforce legislation by directing the steps of the states). Federalism (and, specifically, limitations on federal power vis à vis the states) is the rationale for City of Boerne. In the words of Justice Kennedy:
Congress’ power under section five, however, extends only to “enforcing” the provisions of the Fourteenth Amendment. The Court has described this power as “remedial.” The design of the Amendment and the text of section five are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment’s restrictions on the States. Legislation which alters the meaning of [enumerated constitutional rights] cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is.
If Congress cannot alter the scope of constitutional rights by means of legislation, then the Department of Justice surely cannot alter the scope of constitutional rights by enforcement of existing legislation. And that is exactly what the Department of Justice is doing.
The Civil Rights Act of 1964 prohibits discrimination on the basis of “sex.” The demands of the Department of Justice rest upon its recent interpretation of the word “sex” to include “gender identity.” This novel interpretation opens the door to the City of Boerne challenge. Did the framers of the Fourteenth Amendment establish a constitutional right of access to restrooms on the basis of one’s chosen gender identity? Is the Department of Justice enforcing remedial legislation, or is it creating new constitutional rights? Because the power to issue mandates to the states rests on the remedial powers of the federal government, the Department of Justice must establish that its action is merely remedial. This is an argument that should fail as a matter of law.
If North Carolina loses this argument, the implication for our federal system are quite significant. If the federal government, via the interpretive activity of one of its executive departments, can issue mandates to the states regarding bathrooms, it is hard to imagine an area of local governance shielded from federal scrutiny.
Separation of Powers
The Department of Justice contends that North Carolina’s statute violates Title VII of the Civil Rights Act of 1964. According to the Department’s complaint,
North Carolina and Governor McCrory have engaged in a pattern or practice of resistance to the full enjoyment of employment rights under Title VII by implementing and requiring compliance with policies and practices that require public agencies to discriminate against their transgender employees based on sex in the terms, conditions, and privileges of employment in violation of Title VII.
The text of Title VII (42 U.S.C. § 2000e) prohibits discrimination in employment on the basis of an individual’s “race, color, religion, sex, or national origin.” This statute was enacted by Congress and signed by the president. Title VII says nothing about gender, sexual orientation, or gender identity. Nevertheless, the Department of Justice, purportedly enforcing Title VII, alleges that “sex” as used in the statute should be interpreted to include one’s chosen “gender identity.” Thus, according to the Department of Justice’s interpretation, conditioning access to public restrooms, locker rooms, and prisons on the basis of one’s biological sex markers (such as male genitalia) is discrimination on the basis of gender identity, which is tantamount to discrimination on the basis of sex in violation of Title VII. In the words of the governor’s complaint, this is a “radical reinterpretation of Title VII.”
The novelty of the Department’s radical legal interpretation is compounded by the Department’s contestable factual assertions. The complaint concedes that while “there is not yet one definitive explanation for what determines gender identity, biological factors, most notably sexual differentiation in the brain, have a role in gender identity development.” Despite this lack of understanding, the Department nevertheless insists that “gender identity is innate and external efforts to change a person’s gender identity can be harmful to a person’s health and well-being.” If this case proceeds, the burden should be on the Department to prove these facts. And the department’s factual claims are contested.
The Department’s interpretation of Title VII is not an interpretation. The Department is rewriting the law. Congress, of course, has the power to add gender identity or sexual orientation to the statute by amending it. But those favoring LGBT exceptionalism have found their efforts in Congress to be unsuccessful. The LGBT lobby has tried for many years to convince the policymaking branch of government to pass legislation adding “sexual orientation” and “gender identity” to the Title VII list, without success. The Employment Non-Discrimination Act (ENDA) has been proposed in nearly every congressional session since 1994, but Congress has yet to pass the legislation. Obama’s DOJ now appears to be arguing that Congress need not pass ENDA, for sexual orientation and gender identity protections have been there in the law all along. Go figure.
Every child learns that our federal government is one in which the powers of government are separated. It is a system of checks and balances. Like federalism, structural separation of powers is, according to the framers, a guarantee of individual liberty and a security against abuse of federal power. Madison famously explained in Federalist 51 that “in framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” His proposed solution to this problem? Separate the legislative power (the power to create new rights and duties) from the executive and judicial powers. Furthermore, because the Framers recognized that legislative power is the most significant threat to individual liberty (see Federalist 78), the Constitution divided the legislative power between two houses of Congress. Finally, the federal legislative power was purposefully limited by the powers enumerated in Article I, leaving state legislative power in place. This creates a “double security” for the rights of the people. “The different governments will control each other, at the same time that each will be controlled by itself.”
The principles articulated in the Federalist remain vital in our constitutional republic. There is great danger in consolidating power in the hands of the executive branch. Why would anyone waste time lobbying hundreds of members of Congress to pass legislation to change policy, if all it takes is the stroke of a deputy assistant’s pen? If the Department of Justice can, by letter, reinterpret federal civil rights law in the manner it is now doing, then what provides the citizens of the United States any security against the whims of the executive?
If President Obama’s Department of Justice can rewrite Title VII, then what will prevent President Trump’s Department of Justice from rewriting federal immigration law?
Robert L. McFarland is an associate professor and associate dean at Faulkner University’s Thomas Goode Jones School of Law.