Donald Trump’s executive order deserves no judicial sanctuary.
It’s 2020. President Kamala Harris decides that it’s time to expand on the success of the Title IX sexual discrimination investigations on university campuses.
A letter goes out to city councils, county boards and state labor commissions across the country, informing them of an expansive new interpretation of Titles VI and VII of the Civil Rights Act. They’ll all be required to set up extrajudicial bodies to enforce the new pansexual orthodoxy through administrative hearings and fines.
The charges will be vague and nebulous, and sometimes they won’t be decided until the end of the hearing, but they’ll cover all human interaction in the public sphere with any sort of sexual undertone. Plain old flirting will be covered, but so will jokes about furries yiffing, and references to Bruce Jenner.
At the hearings, witnesses will testify in secret, and will not be submitted to cross-examination, because of their trauma. Instead, the judges will be inquisitors. There will be penalties for those who refuse to turn informant.
There will be no rules of evidence, nor rights for the accused.
The names of the proscribed will be published online, along with the property they forefeited.
So how would the president impose her will?
She would order her Cabinet to “ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds.” By itself, this effect would be far reaching. Texas, for example, receives funding from more than 400 federal programs, which make up around 35 percent of the budget, according to one state report.
The Attorney General would be told to “take appropriate enforcement action against any entity that violates” the Civil Rights Act. An agency “which has in effect a statute, policy, or practice that prevents or hinders the enforcement” of the new program could also be penalized.
The Office of Management and Budget would be told “to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any” jurisdiction resisting the policy.
The deplorables, at last, will get what is coming to them.
By now, of course, you will have guessed that I’m not just talking about a hypothetical situation two steps removed from the present. I’m also talking about the present.
Conservatives should applaud Federal District Judge William Orrick’s decision to block President Trump’s executive order concerning “sanctuary cities.”
Under the law, the president does not have the authority to coerce states and localities to do his bidding by threatening their funds. If we get rid of that principle, we will turn the presidency into a quasi-dictatorship. The sanctuary cities of the future might well be those jurisdictions that insist on their control over their schools’ curriculum, their public restrooms, or their property taxes.
Despite all the carnival barking on talk radio about sanctuary cities, I think most informed conservatives recognize that the actual mechanism being employed here is dangerous and illegal. Even Breitbart had a subdued response to the ruling.
There may be some problems with the judge’s order. Andrew McCarthy at National Review and Hans Von Spakovsky of the Heritage Foundation point to some issues, but they’re mainly working around the edges, addressing formalities.
Orrick may have jumped the gun here, by enjoining something that hasn’t yet taken shape. It’s entirely possible that McCarthy and the government lawyers are correct, that the order would have had a minor effect on three small grant programs in just a few jurisdictions.
But the judge blocked the executive order for five distinct reasons, the most troubling of which is that the order is written in the broad language quoted above. When you talk about stripping all “Federal funds… except as mandated by law,” the tautological qualifier doesn’t mean much. The order urges officials to push and even jump past the boundaries of federal authority.
The problem here isn’t just that the president “cannot constitutionally place new conditions on federal funds,” as Orrick wrote. Not even Congress can impose conditions after the fact — at least not burdensome conditions.
Five years ago, conservatives applauded when the Supreme Court blocked Obamacare’s Medicaid expansion in Sebelius. Congress had threatened to cut all Medicaid funding to states that didn’t accept new terms for expansion.
The court had allowed previous coercion of that type, as when Congress effectively raised the national drinking age to 21 by threatening a 5 percent penalty on highway funding for noncompliant states.
But the court set a new standard that the Trump administration ought to embrace.
When states and localities are offered federal funding, they must be given the terms up front, as changing the deal later may amount to unconstitutional coercion. “The legitimacy of Congress’s exercise of the spending power thus rests on whether the state voluntarily and knowingly accepts the terms of the contract,” the court ruled in Sebelius.
Rather than seek to break down constitutional limits, Trump ought to repair the damage done to them by his predecessor. President Obama’s Department of Education created a frenzy of sexual paranoia at our universities through its appalling reinterpretation of Title IX and its continual investigations. It’s time to end the kangaroo courts. It’s time to end The Terror.
Trump may find himself tangled in litigation with every move he makes on immigration. But he has a free hand in putting the educrats in their place.
There’s one thing that Trump’s supporters appreciate even more than his posture on immigration — his complete rejection of political correctness.
If he wants to deliver on that issue, he needs to be an opponent of federal meddling, not its champion.
Photo credit: Roman Boed, Flickr, Creative Commons