Why is Obama’s executive action unconstitutional?
Obama’s executive action unilaterally imposed an order to all federally funded schools and universities across the country, bypassing the Constitutionally mandated mechanism to create law—Congress.
Article I, Section 1 of the Constitution provides that all legislative authority is vested in Congress. Period. The executive presidential authority is not to legislate, i.e. create law. Congress has never passed any laws related to transgender issues, and certainly not one that requires public schools to change their male / female separate facilities.
Obama’s action also sought to unilaterally “interpret” and redefine the term “sex” in non-discrimination laws to include “gender identity” as a basis of determining an individual’s sex, bypassing the judiciary’s function to interpret law.
Importantly, interpretation of law is not actually a Constitutional authority specifically granted to any federal branch of government, but “judicial review” was first established as precedent through the Supreme Court in Marbury v. Madison in 1803. (For a more thorough explanation of judicial review and the Constitution’s limited and contextual authority, I have written extensively on this subject.)
Article III of the Constitution provides all judicial authority to one Supreme Court and the federal courts. Not the executive office.
Regardless of whether you agree or disagree with the merits of “gender identity,” that is not the issue. Congress has the only federal authority to legislate.
But even that is a limited power. Per Article 1, Section 8, Congress only has authority to legislate within certain areas, as the Founders recognized that most issues should be reserved to the States. Congress and the Supreme Court have vastly (and unconstitutionally) widened their jurisdiction, contrary to the Ninth and Tenth Amendments.
So when discussing this issue, it’s important to keep the Constitutionality of Obama’s action at the forefront—not the “feelings” based appeals to sympathy from the LGBT crowd.
What’s going on with the States’ response?
Currently, at least a dozen states are openly refusing to comply with Obama’s edict, citing the unconstitutional action, and more states may soon join the ranks.
North Carolina and Texas are two of the most prominent dissenters. North Carolina Lt. Gov. Dan Forest said, “North Carolina public schools in receipt of the president’s letter are reminded that there is a binding state law on the books governing bathroom policy and the president’s non-binding directive is merely his attempt to push his version of a social policy on our state with no Constitutional authority to do so. It should be rejected as a matter of principle and policy.”
States are absolutely correct that Obama’s action was unconstitutional and non-binding. They have constitutional authority, via the Tenth Amendment, to legislate concerning the transgender issue in each individual state.
North Carolina’s HB 2 was signed into law prior to Obama’s action (which action does not invalidate HB 2’s status as good law), and HB 2 simply created a bright-line standard to determine a person’s sex: by his or her birth certificate.
In the definitions sections, HB 2 states, “Biological sex – The physical condition of being male or female, which is stated on a person’s birth certificate.”
Birth certificates are commonly used in other legal contexts to show proof of age, state of birth, location of birth, etc. North Carolina is not discriminating against any group or individual by setting a reasonable, non-arbitrary standard of proof to show one’s sex.
We can expect more lawsuits filed by the Department of Justice like the one filed against North Carolina from Obama’s Administration to attempt to force compliance with this new redefinition of “sex” to include “gender identity.”
Hopefully we can also expect more lawsuits and complaints from the states, such as the one North Carolina filed against the Department of Justice.
What can you and I do about it?
As constitutional conservatives, we rightly care that the federal government is usurping its authority and openly defying the Constitution. We cannot leave these issues to simply be litigated extensively by an overtly liberal federal judiciary that has already proven itself a usurper of constitutional authority.
As citizens, we have two key powers to employ:
Do not be silent! Call your Congressmen in Washington and your local state governor and legislators and ask them what they intend to do about it. Tell them you know that Obama’s action is unconstitutional and you expect them to uphold the Constitution. All contact information for your representatives in your state and in Congress are available and open to the public.
Jam their phone lines day and night until they realize this is serious.
Take away Washington’s power! Article V to the Constitution provides the legal mechanism for the states to curb federal usurpation through a call for a Convention of States.
The Constitution begins with “We The People” specifically because we are the ones, through the Constitution, that grant limited authority to the federal government. Our rights don’t come from the government through the Constitution. The government’s only source of authority and power is the Constitution.
Article V provides that when two-thirds of the state legislatures call for a convention for the purpose of proposing amendments to the Constitution, Congress shall call a convention. The purpose of this legal ability is so that if and when the federal government abuses its power—like they are now!—the states can provide additional limits and also redistribute powers.
Our rights do not change one iota. But Washington’s powers can be taken away.
For example, we can take away the president’s granted power to nominate Supreme Court justices and give that power to the states. We can impose term limits on justices and Congress. We can require a balanced budget.
Our Constitution is intended to provide very specific, limited powers necessary for the federal government to preserve and protect our rights and state sovereignty. Washington and especially Obama are blatantly ignoring their limits.
It is time for We The People to use Article V for the specific purpose it was intended and stop federal government overreach.
To get involved in the Convention of States Project in your state, click here.
Jenna Ellis is an attorney, professor of law at Colorado Christian University, and international speaker.
Email Jenna at firstname.lastname@example.org