WHITE HOUSE OVERREACHES ON TOILETS
Threat to pull federal money from states is unconstitutional bullying
North Carolina’s bathroom bill fight is now a national battle and part of the political debate. That was assured by the dueling lawsuits filed last week by the state and the Justice Department, and the administration’s letter instructing schools nationwide to comply with its interpretation of federal law.
Justice claims the authority to dictate a national policy regarding bathrooms and locker rooms, and presumably shower facilities as well, and has threatened to pull billions of dollars in federal funding from states that refuse to comply. North Carolina Gov. Pat McCrory has described this threat as federal “overreach.” And he’s right.
The federal government has only those powers, both expressed and implied, granted to it by the Constitution. While laws enacted by Congress generally bind the states, the Supreme Court reminds us in National Federation of Independent Business v. Sebelius that “the Constitution has never been understood to confer upon Congress the ability to require the states to govern according to Congress’ instructions.” Yet this is precisely what Justice presumes to do through its new interpretation of Title IX, a federal law grounded in Congress’ spending power. INCENTIVES OR COERCION? According to the department, Title IX now requires North Carolina — and every other state — to allow students to use restrooms based on gender identity or lose all its Title IX money. The problem is that imposing this new condition is not a valid exercise of Congress’ spending power. Although this power is broad, the
NFIB case confirms that it is not unlimited. While Congress may use its spending power to “create incentives for states to act in accordance with federal policies,” as soon as “pressure turns into compulsion,” states lose the ability to knowingly and voluntarily decide to adopt a federal policy.
In the NFIB ruling, the Supreme Court considered whether Congress could threaten to withhold Medicaid funding from states that refused to implement the Affordable Care Act-mandated changes. Because Medicaid funding amounted to 10% or more of the average state’s total budget, seven justices easily concluded that Congress’ new condition on existing funding was “so coercive as to pass the point at which ‘pressure turns into com- pulsion’.” The court saw no need to draw a specific line or percentage because the health care law was “surely beyond” it. In fact, the court described the threat of losing 10% of the average state’s budget as “a gun to the head” of all states, effectively (and unconstitutionally) “conscript(ing the state) into the national bureaucratic army.”
The administration’s Title IX threat is unconstitutional for the same reason: It exceeds Congress’ spending power by coercing states to adopt a new federal policy. If the federal government were to strip North Carolina of its Title IX funding, the state would need to make up the deficit from its general revenue, consisting primarily of taxes. BILLIONS AT RISK Though estimates vary, the Human Rights Campaign reports that North Carolina has $4.5 billion in Title IX funds at risk. If lost, replacing these funds would have consumed a whopping 18.6% of North Carolina’s $24.2 billion in general revenue during the last fiscal year.
Through its threats, the White House is forcing the state into the unconstitutional position of having to choose either to adopt the federal government’s new policy or to find a new way to cover lost Title IX funding by taking 18.6% of its revenue from other impor- tant programs, or by raising taxes dramatically. This is not “relatively mild encouragement to the states”; it is a gun to North Carolina’s head. And the NFIB ruling confirms that such coercion is unconstitutional.
Moreover, that same ruling teaches that Congress’ “power to legislate under the spending power … does not include surprising participating states with post-acceptance or ‘retroactive’ conditions.” Requiring states suddenly to adopt a new federal bathroom policy in 2016, when Title IX has been on the books since 1972, imposes just the type of surprise that the Constitution does not permit.
The Obama administration certainly is entitled to join calls to repeal North Carolina’s new state law that requires people to use the restroom that corresponds with their biological sex. But under the Constitution, it cannot demand that North Carolina and other states adopt its policy or else. Such financial coercion not only fuels the lamentable rancor that is infecting public debate over bathroom facilities, but also undermines our system of shared power between the states and the federal government.