April 2, 2016

The drama of "considering" whether the federal government has the power to deprive North Carolina of billions in grant money.

It's a very scary drama:
The Obama administration is considering whether North Carolina’s new law on gay and transgender rights makes the state ineligible for billions of dollars in federal aid for schools, highways and housing, officials said Friday.
Perhaps North Carolina feels threatened. Pushing federal policy — or the Obama administrations idea of policy that's never put in the clear text of any statute — by threatening to cut off billions is undemocratic and underhanded.
Cutting off any federal money — or even simply threatening to do so — would put major new pressure on North Carolina to repeal the law, which eliminated local protections for gay and transgender people and restricted which bathrooms transgender people can use. A loss of federal money could send the state into a budget crisis and jeopardize services that are central to daily life....

Federal agencies have used the threat of lost money to pressure a handful of municipal governments in California and Illinois to change their policies and allow transgender students to use the restrooms of the gender they identify with....

Dan Forest, the Republican lieutenant governor and the president of the State Senate... is correct that federal anti-discrimination laws do not explicitly mention gay and transgender people: the Obama administration has repeatedly called on Congress to pass a law banning discrimination against them in employment decisions....

The Obama administration would not need to go to court to withhold grant money....
But it would be taken to court, and under existing precedent, it would lose. The conditions the states accept when they take grants need to have been clearly stated by the federal government. The states are entitled to know what they are binding themselves to as they take the money. The requirement that a choice-of-gender principle must apply to the sex-segregation of bathrooms isn't something that was understood when North Carolina accepted the grants that the Obama administration is considering taking away.

Let me just quote a little something from the Roberts opinion (joined by Breyer and Kagan) in the Obamacare case:
[O]ur cases have recognized limits on Congress’s power under the Spending Clause to secure state compliance with federal objectives. “We have repeatedly characterized . . . Spending Clause legislation as ‘much in the nature of a contract.’ ”.... 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 position taken by Scalia, Kennedy, Thomas, and Alito cuts even more strongly in favor of the states.)

The subject here is the power of conditional spending. The question whether there's an equal protection right to use government bathrooms based on your gender identification is a different matter.

50 comments:

Hagar said...

But Scalia is dead.

Chuck said...

Same m.o. as in the Title IX threats to pull federal money from institutions of higher education who toe the administration line on handling alleged sexual assault.

It's a sloppy legal solution, and it has led to costly litigation for many schools that dealt injustice to accused male students, but in general it has been effective regulatory. Not effective, of course, in actually doing much about any supposed sexual assault "crisis." Rather, it's been effective in imposing Obama Administration will, and forcing universities to hire lots of new regulatory staff and scare the bejeezus out of everybody on campus.

Moneyrunner said...

Under the Ron Fournier doctrine the courts would have to uphold the Federal Government because forcing people to use bathrooms that correspond to their actual sexual equipment is obviously a gross miscarriage of justice. We are simply raising the bar because Federal Government and GLBT.

Big Mike said...

Pushing federal policy — or the Obama administrations idea of policy that's never put in the clear text of any statute — by threatening to cut off billions is undemocratic and underhanded.

You just now notice how "undemocratic and underhanded" the Obama administration is? Can I presume that's because it's the academic ox being gored? Or is it because you don't want the unisex bathrooms of "Ally McBeal" forced on you in Wisconsin?

But it would be taken to court, and under existing precedent, it would lose.

Maybe, maybe not. From where I sit the "liberal four" on the Supreme Court don't seem to mind overturning precedent in favor of anything resembling "gender rights."

The position taken by Scalia, Kennedy, Thomas, and Alito cuts even more strongly in favor of the states.

I trust it has not escaped your notice that one of those individuals is deceased.

Chuck said...

yipes:

"Same m.o. as in the Title IX threats to pull federal money from institutions of higher education who fail to to the administration line on handling alleged sexual assault."

Nothing quite like a typo that results in the exact opposite meaning.

Hagar said...

Not to mention Michelle's school lunches.

Or school lunches in general. I think I remember something from decades ago about the feds threatening to withold highway funds if a state did not toe their line on school lunches.

Rick said...

The Obama administration is considering whether North Carolina’s new law on gay and transgender rights makes the state ineligible for billions of dollars in federal aid for schools, highways and housing, officials said Friday.

None of this backdoor legislation should be allowed. If the feds want to prevent such a law the proper path is to pass legislation. If this is not in their power they shouldn't be able to bypass that limitation using their taxing authority. This is just another outrageous dictatorial effort.

I can't believe the Supreme Court didn't knock this crap out decades ago.

MadisonMan said...

Our (not so new) Imperial OverLords decree things.

SteveR said...

Congress' Spending Power means nothing to Obama. All this precedent stuff is so old fashioned.

Hagar said...

If you buy into the idea that if it is for a good cause, it does not have to be legal, you will soon find that there are people who will think just about any cause to be "good."

Michael K said...

Another issue for Trump if he can pivot away from word traps by Democrats with bylines.

Sebastian said...

"The subject here is the power of conditional spending" Oh? Says who? If O wants to threaten NC, he will. If SCOTUS Progs want to dispense with the need for "conditions," they will. John Mandate=Tax Roberts stressing what we have "repeatedly" held is particularly rich.

Clayton Hennesey said...

Sooner or later some state will push back in a genteel, 21st Century version of civil war. Perhaps by finding a way to neutralize federal law within the state, perhaps by rendering federal courts and the facilities housing them inoperable (removing furniture and utilities). Perhaps by seizing Federal Reserve deposits. I find it unlikely that a majority of the U. S. citizenry is really infinitely pliable to federal ends.

Over and against whatever power law provides, states will always retain their geographic and other physical primacy with respect to Capitol City and its monuments.

MayBee said...

If I were a governor and the Federal Government threatened to withhold funds to my state, I would tell my citizens and businesses not to send any money to the Federal Government.

Where does the Obama Administration think it gets it's money? From the people who live in states!!!!

Ann Althouse said...

Again, the Equal Protection issue is separate. I'm not predicting what courts will ultimately do with that. I'm addressing the aggressive, draconian shortcut of depriving (or threatening to deprive) NC of money.

Bill Harshaw said...

Does the ruling say that federal money is grandfathered in? That is, the conditions which apply when the program is first initiated cannot ever be changed against the state's will? Or, in the case of programs with annual appropriations, is there a new decision point each year?

Owen said...

Chuck @ 9:40.

Bingo. You took the words right off my keyboard.

The President has become very fond of this Mafia-type persuasion.

Fritz said...

Yet another good reason to take money away from the Feds.

Owen said...

Clayton Hennessy at 9:58: "[perhaps states will find a way to conduct a genteel civil war and] neutralize federal law within the state, perhaps by rendering federal courts and the facilities housing them inoperable (removing furniture and utilities)..."

Wasn't Fort Sumter a Federal facility?

Agree that today it would be easier just to cut off the Feds' Wi-Fi or free parking.

Bob Boyd said...

This is typical Obama manuevering. If the state caves, it's a win. If they don't cave, it's another opportunity to portray Republicans, conservatives, southerners as backward thinking, hateful bigots who no decent person would want to associate themselves with....especially in an election year.
It also furthers the narrative that an all powerful federal government control by Progressives is the only thing preventing many states from devolving into NAZI hellholes.

MayBee said...

Hagar said...
If you buy into the idea that if it is for a good cause, it does not have to be legal, you will soon find that there are people who will think just about any cause to be "good."


nailed it

mccullough said...

Obama pulling his symbolic leftist bullshit in the last year of office. He's not taking away any money from NC. Another useless leftist gesture.

cubanbob said...

Ann Althouse said...
Again, the Equal Protection issue is separate. I'm not predicting what courts will ultimately do with that. I'm addressing the aggressive, draconian shortcut of depriving (or threatening to deprive) NC of money.

4/2/16, 10:00 AM"

Professor an observation from a humble Cuban: Did not NFIB vs Sibelius address this? That is that the federal government cannot coerce the states into spending money (the expanded Medicaid)? Then there is the issue of the Feds withholding funds-does the taxes collected in the State but withheld from the State become an un-apportioned tax? The State can up the ante by refusing to comply with unfunded Federal mandates. That would be a serious challenge to the Federal Government, a game of chicken the Feds can't risk. If the State wins it's a huge blow to the Federal Government. If the State losses it's no worse off than it is currently. NC should as a matter of principle hold firm.

As a policy matter, there will be a new Administration and more than likely a Republican one at that in ten months, not enough time for the legal threats from the Feds to materialize ( for NC) but the threat cuts both ways as the next Administration can do the same for a myriad number of things such as sanctuary cities, benefits to illegals, rent control etc. The Left must be invincibly arrogant and delusional to assume there won't be a counter-reaction.

Ann Althouse said...

"Does the ruling say that federal money is grandfathered in? That is, the conditions which apply when the program is first initiated cannot ever be changed against the state's will? Or, in the case of programs with annual appropriations, is there a new decision point each year?"

In the Obamacare case, the original deal had a condition that Congress COULD change it, and that was clearly stated. The Roberts opinion says the Medicaid extension was such a big change to the old Medicare program that it had to be thought of as a new program, and the consent to the old deal didn't include consent to such a big change. Thus, only the new program money -- the Medicaid expansion money -- was regarded as having been put at risk.

Ann Althouse said...

"Professor an observation from a humble Cuban: Did not NFIB vs Sibelius address this? That is that the federal government cannot coerce the states into spending money (the expanded Medicaid)?"

That's the case I'm quoting in the post. The point is that if it's coercion then it's not conditional spending under the Spending Power. It was held to be coercion in that case because of the huge amount of money that was put at stake, including all the old Medicaid money. It was okay to offer the new money, the expansion part, and say if you want it, you have to follow these conditions.

"Then there is the issue of the Feds withholding funds-does the taxes collected in the State but withheld from the State become an un-apportioned tax?"

No. That's not the problem. Look at the text of the case I linked to searching for the word "capitation." There's a constitutional limit about that, but it's not applicable.

virgil xenophon said...

I note how quick off the mark the Obamassiah is in threatening to withhold federal funds re the constitutionally shaky LGBTQ thing, but steadfastly leaves his federal funds gun in the holster regarding the supremacy clause and the sanctuary city movement--a CLEAR, UNQUESTIONED violation of the very Federal laws that he has sworn to defend by taking his oath of office..

virgil xenophon said...

And what Bob Boyd @ 10:20am has said!!!

RNB said...

Why bother with pressure from the Feds? Just have Sony and Marvel and Disney and Intel and Delta Airlines threaten to pull their business or movie productions from the state. The governor of Georgia folded like a cheap lawn chair to pressure like that just last week. And the liberals and progressives applauded that exercise of corporate power.

Rick said...

Fritz said...
Yet another good reason to take money away from the Feds.


The federal income tax is 3-4 times the state income tax, much of which goes back to the states as block grants. If we flipped the proportions the federal government could focus on its core responsibilities of defense and interstate coordination. Then states could focus on the preferences of the people in them.

The left has pushed the federal model for many reasons, but among them is the desire to ensure competition doesn't reveal their model's inferiority especially over the long term. If the majority of tax is uniform then CA and NY are protected from Texas. The current income tax differential is almost 10%. If that doubled to 20% the the current trends would intensify such that even the left would have trouble denying them with a straight face.

Achilles said...

We had a chance to avoid this. But social cons demanded the federal government define marriage and give as much power to the federal government as they could while they were a majority.

Now here we are with a federal government they empowered in someone else's hands. Thanks for everything.

David Begley said...

Ann Althouse wrote, "But it would be taken to court, and under existing precedent, it would lose. The conditions the states accept when they take grants need to have been clearly stated by the federal government."

Althouse is correct. But the very idea that DOJ would consider bringing such a lawsuit says everything about the coercive lawfare the Left conducts. Another future lawsuit was hinted at during the oral argument in the SSM case. The Feds will deny federal funds to any university associated with a religion if the schools don't allow SSM in campus chapels or allow SSM couples to live in married couple housing.

Humperdink said...

Looking forward to the day when enterprising (and somewhat rebellious) state mandates all employee's federal withholding be funneled through that state's treasury dept.

Hey feds: "The check's in the mail".

jr565 said...

in regards to men and womens bathrooms. fundamentally unless you mandate that all bathrooms be unisex, then bathrooms have to be accessible based on sex, not gender. And thereore transgenders are able to use bathrooms assigned to their sex.
If you say that bathrooms can be used by anyone if they say they are a member of the opposite sex (based on gender construct) and further no one has to present any proof before using the bathroom, what's to stop a man or a woman (biological) from using a bathroom meant for the opposite sex? If they say they are a woman, even for the duration of the bathroom visit, why would they not be?

jr565 said...

Achilles wrote:
We had a chance to avoid this. But social cons demanded the federal government define marriage and give as much power to the federal government as they could while they were a majority.

Now here we are with a federal government they empowered in someone else's hands. Thanks for everything.

You would blame social cons and not the people pushing "gender as a social construct"? Are you crazy?
And incidentially social cons merely support marriage as it has always been defined in this country. THey didnt' define it that way. Until very recently then Hilary Clinton, the SC, Barack Obama, democrats et al. would be social cons then.

jr565 said...

I love how the federal govt would threaten to deprive a state of money for passing a law about bathrooms, but not say threaten states that willfully ignored federal immigration laws.

HoodlumDoodlum said...

Nice little state you have there; it'd be a real shame if anything happened to your fed funding...

HoodlumDoodlum said...

I know it is unrelated but just for me can we just consider for a moment how many transgender people there actually are in the US?

The number I see online is 700k. That is less than a quarter of a percent of the population. The percentage of that population that has concerns about public bathrooms is probably not 100%.

So the same Administration that can't fix the VA, can't launch a website/run its own programs without wasting billions of dollars, can't do anything about more than ten million illegal immigrants...that Admin will go to whatever lengths necessary to look out for the alleged interests of that particular small group (often in the most confrontational way possible) up to and including contemplating clearly unconstitutional acts?

Who can possibility explain the disdain citizens have for the Gov, or the appeal of someone like Trump? It is a mystery.

Eric said...

Nice little state you have there; it'd be a real shame if anything happened to your fed funding...

Ultimately that money comes from people who live in the states (mostly, anyway). I wonder if there's something NC can do or threaten to do that would have an effect on federal tax collections in that state.

n.n said...
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n.n said...
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n.n said...

The State-established pro-choice religion (i.e. church) arbitrarily selects diversity classes for inclusion and exclusion.

Comanche Voter said...

Ol Obama looks more like King John every day.

Mike Sylwester said...

The Obama Administration could prohibit Federal grants from all states with sanctuary cities.

Bruce Hayden said...

If you say that bathrooms can be used by anyone if they say they are a member of the opposite sex (based on gender construct) and further no one has to present any proof before using the bathroom, what's to stop a man or a woman (biological) from using a bathroom meant for the opposite sex? If they say they are a woman, even for the duration of the bathroom visit, why would they not be?

This reminds me of something I ran into awhile back in Scottsdale, AZ. At a popular club, guys would show up wearing dresses, and then hang out in the women's bathroom all evening. They were obviously guys, with 6:00 beards, etc., and if they were true trannies, had not started transitioning yet. But, they likely were just opportunistically doing it for fun. After all, where is the best place to meat drunk women at a club, that they could potentially take home and bed? In the women's room, where women go for safety and to get away from guys they aren't interested in. Back then, the solution was simple - the guys were banned from the club. Now? Maybe not. And, esp. as this all plays out.

Why are public restrooms segregated by sex/gender, when our personal bathrooms mostly aren't (ok - a lot of us live in houses where they are segregated (my partner has the master bath, I have the other two), but that seems to be mostly because of cleanliness issues)? I think that a lot of it is safety. Women are sitting with their pants down, and stranger males are potentially feet away from them, with a flimsy door between. Sure, nothing is likely to happen when the restroom is full of other women. But, what happens when it isn't? As noted above, the guys in that club just spent the evening hanging out in the women's room. What is keeping rapists and the like from doing the same? Think of it this way, when a guy has his pants down, he is, to some extent, sexually aggressive, while gals are sexually vulnerable in the same situation.

BTW - one of the big things that is weird about gay bars, when you are straight, is that restrooms, instead of being pretty neutral sexually, tend to be sexually charged. I remember one where mirrors were situated around the urinals to show every else your junk (and, if so inclined, check out theirs). I somewhat think that males in female restrooms can be somewhat that way.

Mick said...

"Equal protection" being abused by the fellow travelers again, much like the "Establishment clause".
Equal protection has nothing to do with the use of bathrooms, or whether common sense and anatomical reality can be be redefined.

sean said...

I'm not sure why Prof. Althouse expects us to believe that the Obama administration would lost in court. Numerous supporters of gay marriage, including Prof. Eugene Volokh, assured us, repeatedly, that the First Amendment would protect printers, photographers, bakers, and other creative workers from being forced to participate in gay weddings, and that was just an out-and-out untruth. Why should anyone believe a lawprof now?

William said...

And this precedent would allow a future Republican administration to withhold funds from entities that have "sanctuary" laws for failure to enforce federal laws, would it not?. O, frabjous day! Calloo! Callay! The mere possibility that I should ever see San Francisco put in the position of having to choose between between their smug "virtuousness" and the government's cold hard cash makes me shiver with delight.

Jupiter said...

"But it would be taken to court, and under existing precedent, it would lose."

Your faith in courts is misplaced. The Left believes that any institution which stands in its way must be coopted or destroyed. Since the whole point of Leftism is to replace voluntary relations with coercive ones, they require a functioning court system. Therefore, the courts must be coopted. Roosevelt tried it, but lost his nerve. The second President Clinton will complete the project.

If you imagine that the law schools will be spared, well, you are planning on retiring soon, right? Don't wait too long, is my advice.

Yancey Ward said...

Alright, Breyer and Kagan would reverse themselves in this case. In my opinion, their concurrence in the ACA case was purchased by Roberts' decision on the mandate itself. Given the current makeup of the court and the DC court, North Carolina would surely lose should it make it into the court system.

However, I think Obama would back down before it came to that.

R.A. Crankbait said...

So does this mean that no federal money will now go to Cuba or Saudi Arabia, given their human rights history?