The Trump administration is about to overturn one of the Obama administration’s most radical policies: The imposition of radical transgender protections on the states. As the Daily Caller notes:
Donald Trump’s administration appears poised to overturn a vague Obama administration order allowing transgender students in America’s taxpayer-funded schools to use the bathrooms and locker rooms of their choice.
White House press secretary Sean Spicer suggested on Tuesday that Trump will abandon Obama’s transgender-bathroom mandate and let states decide who can use which toilets.
“This is a states’ rights issue and not one for the federal government,” Spicer informed reporters, according to The New York Times.
Spicer’s statement about Trump’s policy is worlds apart from the Obama administration guidance, sent in May, which instructed public school districts across the country that they must allow transgender students to choose bathrooms and shower stalls consistent with their gender identity, not their biological features.
Spicer is absolutely right. Obama’s radical transgender agenda was about imposing radical liberal orthodoxy on the rest of America. It probably went a long way towards costing Hillary the election. What’s more, it was unconstitutional. As National Review’s Mario Loyola noted at the time:
Obama’s Orwellian transgender “guidance” boils down to this same tactic. As National Review’s David French notes, the administration has denied that the letter is a threat, noting that it is mere “guidance.” But that’s just Newspeak. The whole point of the letter is to warn school administrators that they will lose crucial federal funds if they don’t comply with the new rule.
The reason for the Newspeak is that Federal courts still require the administration to at least pretend that it’s not taking over the states through dictatorial proclamations. The dirty secret is that the federal courts will let the president do precisely that, so long as he pretends to be doing something else.
Americans should beware. With the connivance of the federal courts, Congress has already delegated the president enough authority to rule by decree as long as he stays even somewhat close to the boundaries of those sweeping delegations. But through executive federalism, the president doesn’t even need to stay within those limits. The president now systematically uses the machinery of state government to enact national laws entirely outside the constitutional process.
Trump’s administration has signaled a broader move towards letting states set their own policies. It’s important that liberals come to understand that what playsin Paris, France does not play in Paris, Texas. We hope this encouraging rollback is only the beginning.