Thursday, May 26, 2016

Do They Have A Leg To Stand On?

Do the elven states that are suing President Obama have any standing in court?
States Sue Obama Administration Over Transgender Bathroom Policy
New York Times
By David Montgomery and Alan Blinder
May 25, 2016

AUSTIN, Tex. — The Obama administration on Wednesday faced the first major court challenge to its guidance about the civil rights of transgender students in public schools, as officials from 11 states filed a lawsuit testing both the scope of federal anti-discrimination law and the government’s sweeping interpretation of it.

The officials, in states from Arizona to Georgia to Texas to Wisconsin, brought the case in Federal District Court in Wichita Falls, Tex., and said that the Obama administration had “conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over common-sense policies protecting children and basic privacy rights.”

The lawsuit asked the court to block the federal government from “implementing, applying or enforcing the new rules, regulations and guidance interpretations.”
So do they any legal standing?
“I see it as a political stunt, and a really unfortunate one because it’s at the expense of transgender people, including transgender youth all across the country,” said James D. Esseks, an American Civil Liberties Union lawyer who focuses on gender identity and sexual orientation issues. “They’re acting as though the Obama administration’s guidance that came out a few weeks ago is like the first time that anyone has interpreted federal bans on sex discrimination to cover transgender people.”

Carl Tobias, a law professor at the University of Richmond, said the administration “may be pushing the envelope, but not a whole lot.”
The first hurdle to get by for the Department of Education and the Justice Department  is that the case…
...was assigned to Judge Reed C. O’Connor, an appointee of President George W. Bush, the officials said that the federal government had gone “so far beyond any reasonable reading of the relevant congressional text such that the new rules, regulations, guidance and interpretations functionally exercise lawmaking power reserved only to Congress.”
I think it is going to be like the Virginia case where the Federal judge that was appointed by President Reagan ruled in favor of the state and dismissed the case, however, the case was later sent back to the trail judge on appeal.

I wasn’t  surprise that Maine’s Governor LePage jumped on the bandwagon he is trying to make Maine like the southern states.


  1. I believe the key legal issue is the excess of the use of an Executive Order by Obama to act in an arena of law that the Constitution reserved to Congress. He has admitted that his EO does not have the force of law but he has threatened to remove funding to schools in states that do not obey his dictate.
    While it is clear that the tactics of sanctuary cities is in violation of Federal Law the Obama Administration has not threatened to cut of Federal Funds to those cities.
    While you may like the goals of the gross expansion of Federal power that has been usurped by Obama and his minions would you feel the same if the expansion of the executive's power were done by a Republican seeking goals that you did not agree.
    I have long felt that the threat of the cut off of allocated funds as a means to force a state to comply with a dictate from D.C. was an improper overreach by a central government that has expanded its power beyond what was provided for in the Constitution. I did not like it when this threat was used to force States to impose the 55 MPH speed limit as a reaction to the oil crisis of the 1970s. I would much prefer that proper legal means be used to achieve protections for trans folks. I do not disagree with your aims only your big government methods of coercion.

  2. Well first off this is not an Executive Order but is based on Supreme Court rulings and also lower federal court rulings. As I have mentioned in the past the foundation of the Justice Department’s ruling is the Price Waterhouse Supreme Court ruling. There have been federal court rulings that found that discriminating against trans people is a violation of the Fourteenth Amendment and there have been other federal court rulings that found that we are covered under Title VII and Title IX of the Civil Rights Act. The latest being the U.S. Court of Appeals for the 4th Circuit. So the Justice Department is not pulling their ruling out of a hat but just stating what the courts have ruled.

    The Justice and Educations department are just following the law that has been in effect since 1964 and for the states to receive federal funds they have agreed to obey the law which they are reneging on.

    As for executive orders, President Reagan holds the record for modern presidents and :President Bush W. issued more executive orders than President Obama
    Ronald Reagan 381
    George H. W. Bush 166
    William J. Clinton 364
    George W. Bush 291
    Barack Obama 235

  3. Diana,
    One thing most people are missing is the fact that states that accept funding under the Violence Against Women Act agree to the act's provisions which include not discriminating based upon gender which explicitly includes gender identity. It must be noted that the VAWA that included LGBT provisions was passed by a republican House and Senate. The DOJ cited the VAWA as part of its authority in its recent advisory. As you said, the administration isn't making up law it is enforcing the law which is role of the executive branch. Unfortunately, those that hate Obama will never acknowledge this and at least 11 states have executives who fall into that category.