State Attorneys General Didn't Start the Fire

The American form of government, in the classic formulation of Justice Salmon Chase, contemplates “an indestructible Union composed of indestructible States.”[1] The Constitution, apart from assigning specific functions to the federal government, and prohibiting the states from exercising certain powers, largely leaves the determination of public policy to the 50 states. As numerous jurists, statesmen, and political commentators have noted, the Union presupposes the inherent right of the states to self-government.

To be sure, the never-ending quest to find a federal/state equilibrium has engendered many debates and controversies. In his Liberty Forum essay, Professor Nolette asserts that state attorneys general have inappropriately devoted themselves to national policymaking and partisan interests. He neglects the entity most responsible for undermining the federal ideal: the unhinged regulatory state based in Washington, D.C. Taking his eye off the federal elephant in the room, Nolette also fails to see the positive role that many states and their AGs are playing in protecting the essential character of American self-government from the ever-expanding ambitions of Beltway administrators.

Many state attorneys general are committed to constitutional rights and limited government. For example, the AGs of Alabama, Alaska, Arizona, Arkansas, Louisiana, Michigan, Nebraska, Nevada, Oklahoma, South Carolina, Texas, Utah, and Wisconsin openly denounced efforts by government officials, at the state and national levels, to police the debate over global warming and climate change without any noticeable regard for the First Amendment (under which the correct way to remedy any “danger flowing from speech is more speech, not enforced silence,” to quote Justice Brandeis). Law-enforcement authority is not to be used, they affirm, “to resolve a public policy debate.”

At the other end of the spectrum, it is clear that no government actor is immune from mistaking prudent action for ideologically-driven activism. This can be seen in the Attorney General of the U.S. Virgin Islands, Claude Earl Walker, and his recent abuse of his subpoena power to obtain over four decades worth of material from ExxonMobil. The alleged offense of ExxonMobil, which has no offices or operations in the U.S. Virgin Islands, is its viewpoint on the subject of climate change.

Notwithstanding the First Amendment problem that arises when speech is criminalized, Attorney General Walker then doubled down on the constitutional turmoil by hiring a private law firm to pursue ExxonMobil, on a contingency-fee basis, which flouted the fundamental due process right to impartiality in criminal and quasi-criminal investigations. Thus a biased prosecutor, with a direct stake in the outcome of a criminal investigation, was using governmental power to pursue a private company for exercising free speech. Fortunately, Walker withdrew his subpoena after the AGs of Texas and Alabama intervened in a case brought to quash the subpoena.

The attempt would have set a dangerous precedent, but it was an isolated event and was thwarted early on, fortunately. The much larger and persistent problem for American constitutionalism is the federal executive branch—not executive branch officers at the state level—and its rampant misuse of power. In its current form, the federal administrative state seemingly knows no limiting principle. Indeed, no assessment of the current federal-state balance is complete without a detailed description of the efforts by state AGs to restore federalism in the face of federal regulatory overreach.

The “regulatory dark matter” that Clyde Wayne Crews, Jr. has written about is implicated here. Under the Administrative Procedure Act of 1946 (APA), agencies must notify regulated parties of a proposed regulations or rules and afford everyone an opportunity to comment. With increasingly frequency, however, federal agencies forsake the formal rulemaking process for, as Crews describes it, the thousands of agency and presidential memoranda, guidance documents (“nonlegislative” or interpretive rules), notices, bulletins, directives, news releases, letters and even blog posts [that] may enact policy while flouting the APA’s public notice and comment requirements for legislative rules.[2]

The new methodology amounts to a regulatory shell game, where the federal government’s actions are designed to dodge accountability and transparency. Regulatory dark matter evades congressional action and judicial review. What’s more, the off-the-books rules usurp the sovereignty of states and local authorities.

The federal government’s recent attempt to force public schools to open their restrooms, showers, locker rooms, and other intimate areas to members of both sexes offers a telling portrait of how regulatory dark matter is used to the detriment of state and local authorities.

Public education has long been the province of these authorities; American law and public policy support this arrangement. The Supreme Court has noted that education is not afforded explicit protection under the U.S. Constitution[3] and that “no single tradition in public education is more deeply rooted than local control over the operation of schools.”[4] Further, leaving education to States and localities encourages parental control, competition, and accountability.

Consistent with this longstanding framework, laws in all 50 states delegate power to officials to manage education facilities, including physical control over restrooms, locker rooms, and other intimate areas. For years, thousands of public school districts across the country have used their lawful discretion to designate restrooms and other intimate areas by sex.

These commonsense policies are animated by a concern for safety and a regard for the personal privacy of students. As Justice Ruth Bader Ginsburg, then a law professor, concluded, “Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by a regard for personal privacy.”[5]

Sex-specific restrooms are in accord with Title IX of the Educational Amendments of 1972, which make clear that “nothing contained herein shall be construed to prohibit any educational institution . . . from maintaining separate living facilities for the different sexes.”[6] And they are expressly authorized under the federal regulations implementing Title IX, which provide that “living facilities” extend to “toilet, locker room, and shower facilities,” and that separating biological men and women is appropriate.[7]

Nevertheless, federal administrative agencies quietly endeavored to enforce a nationwide restroom code. It began with a “Dear Colleague” letter sent by the U.S. Department of Education in 2010, wherein the department’s Office for Civil Rights asserted that “Title IX does protect all students, including . . . transgender (LGBT) students, from sex discrimination.”

Following the sending of that letter, the U.S. Equal Employment Opportunity Commission held that “discrimination against a transgender individual” is discrimination based on “sex” within the meaning of Title VII, and that employer must provide restroom access corresponding to one’s “internal sense of being male or female (or, in some instances, both or neither).” The federal Departments of Justice and Labor relied on these EEOC holdings in issuing their own off-the-books rules substituting “gender identity” for “sex.” Finally, the Office for Civil Rights released a joint letter with the Justice Department, threatening public schools with legal action and the loss of federal funding if they did not promptly open their restrooms to both sexes.

Within the joint letter, the Education Department publicly revealed that it has been enforcing the new rule across the country for some time. These past enforcements are uniform, leaving no room for school districts to apply the individual solutions or remedies that work best for their institutions and student bodies. No matter the circumstances, the Education Department demanded uniformly that students be given access to the intimate spaces that conform with their chosen “gender identity,” without regard to the privacy, dignity, or safety needs of other students.

Absent the effort of state AGs, the feds might have succeeded in compelling school districts to abide by regulatory dark matter rather than the actual provisions of Title VII and the law’s implementing regulations. After all, the Education Department’s standard course is to threaten non-conforming schools with the immediate loss of federal funding. Since these funds comprise upwards of a fifth of the budgets of many local districts, schools are hard-pressed not to accede to diktats from Washington.

The attorney general of Texas, along with 12 other states and two school districts, moved for a nationwide injunction to prevent the federal government from enforcing its revisions of Titles VII and IX. Shortly thereafter, the Nebraska AG, joined by nine more states, filed a similar suit.

The plaintiffs in the Texas litigation demonstrated the various ways in which the federal defendants used regulatory dark matter to encroach upon an area traditionally been left to state and local officials. The federal District Court found that the defendants exceeded their authority and entered a nationwide injunction.

Significantly, the injunction permits individual school districts to adopt the policies that they find most appropriate for their students. Only federal agencies are prohibited from meddling in an area where they lack authority. In other words, federalism prevailed.

There are many other areas where state AGs have pushed back against administrative intrusion into state and local matters. Consider two recent rules promulgated by the Labor Department and the Department of Department of Health and Human Services (HHS).

Early this year, the Labor Department substantially amended the longstanding “Persuader Rule,” enacted in the 1950s and designed to bring fairness to organized labor campaigns. However, Labor’s new “Persuader Rule” shredded attorney-client confidentiality and required attorneys to divulge confidential details about their representation and advice in labor disputes. The new rule ran headlong into the foundations of the legal profession and the right of everyone to confidentially consult with counsel about anything.

As a former president of the American Bar Association put it, the revised regulation “opens up to public and administrative disclosure and scrutiny virtually every confidential, attorney-client communication with management on the subject of labor relations.”[8] Never before, as far as I know, had the federal government enacted a rule that stood in the way of the exercise of this right.

Among other defects, the new “Persuader Rule” disregarded the substantial state interest in regulating the practice of law. The D.C. Circuit Court of Appeals noted that the “states have regulated the practice of law throughout the history of the country; the federal government has not.”[9]

For example, the state of Texas’ constitution establishes that “the [Texas] Supreme Court is responsible for the efficient administration of the judicial branch and shall promulgate rules of administration not inconsistent with the laws of the state as may be necessary for the efficient and uniform administration of justice in the various courts.”[10] The Texas legislature, moreover, has confirmed that the Texas Supreme Court has “full rulemaking power in the practice and procedure in civil actions.”[11]

There was no legal basis for the Labor Department to intrude upon the principles of confidentiality and loyalty between clients and their attorneys. Accordingly, the Texas AG and those of nine other states brought suit against the department to protect and preserve the sanctity of the attorney-client relationship for everyone. Given the clear lawlessness of the department’s action, a federal court entered a preliminary injunction, preventing the rule from taking effect.

Unfortunately, not only the attorney-client relationship but that between a doctor and his or her patient is also being meddled in by Washington. Any patient seeing a medical professional expects to be helped and to receive honest and trustworthy advice. After all, it is the best interests of the patient that is at the heart of medical care, and every doctor is required to act in the best interests of his or her patient.

Yet, a new rule by HHS forces doctors to supplant the best interests of their patients with a pre-determined decision regarding controversial and sometimes harmful medical procedures—procedures ostensibly designed to permanently change an individual’s sex, including the sex of children. Under this regulation, a doctor must perform these procedures even when they are contrary to his or her medical judgment; are not in the patient’s best interests; and could result in significant, long-term medical harm to the patient. No doctor should ever be forced to forego the best interests of his or her patient, and it is certainly not the prerogative of the federal government to predetermine medical decisions that should be made by doctors and their patients.

As in the case of the Persuader Rule, the HHS regulation also undermines the longstanding sovereign power of the states to regulate healthcare, ensure appropriate standards of medical judgment, and protect its citizens’ constitutional and civil rights. The Supreme Court has recognized that the states have “a significant role to play in regulating the medical profession,” as well as “an interest in protecting the integrity and ethics of the medical profession.”[12] This includes “maintaining high standards of professional conduct” in the practice of medicine.[13]

In Texas, the statewide standard of medical practice rests on the principle that doctors must exercise “independent medical judgment” when treating patients under their care.[14] Numerous state laws and regulations ensure that physicians honor their duties to their patients. For example, medical organizations are prohibited from interfering with, controlling, or directing “a physician’s professional judgment” and must permit physicians to exercise “independent medical judgment when providing care to patients.”[15] And the Texas Medical Board regulations further ensure that doctors practicing in the state retain “independent medical judgment and discretion in providing and supervising care to patients,” and may not be disciplined for “reasonably advocating for patient care.”[16]

The HHS Regulation, however, summarily discards these standards. Here again, the Texas AG, joined by four states, has stepped in and filed suit against the federal government. Whether the standard of care will remain in the hands of state and local authorities is the significant federalism issue that Texas and its co-plaintiffs are fighting for.

Ben Franklin’s famous quote about republicanism comes to mind here. Federalism will remain only “if we can keep it.” The efforts I’ve described here to combat administrative overreach are an important step in keeping this vital principal alive and well.

[1] Texas v. White, 74 U.S. 700, 725 (1868).

[2] Clyde Wayne Crews, Jr., “Mapping Washington’s Lawlessness 2016: A Preliminary Inventory of ‘Regulatory Dark Matter,’” (Competitive Enterprise Institute, December 2015), p. 3.

[3] San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973)

[4] Milliken v. Bradley, 418 U.S. 717, 741 (1974).

[5] Ruth Bader Ginsburg, “The Fear of the Equal Rights Amendment,” Washington Post, April 7, 1975.

[6] 20 U.S.C. § 1686.

[7] See 34 C.F.R. §§ 106.32(b); 106.33.

[8] Testimony of William T. Robinson, III, before the House Education and Workforce Committee’s  Subcommittee on Health, Employment, Labor and Pensions, April 27, 2016.

[9] American Bar Association v. Federal Trade Commission, 430 F.3d 457, 472 (D.C. Circuit, 2005)

[10] Constitution of the State of Texas, Article V, § 31.

[11] Texas Government Code § 22.004.

[12] Gonzales v. Carhart, 550 U.S. 124, 157 (2007); Washington v. Glucksberg, 521 U.S. 702, 731 (1997).

[13] Barsky v. Board of Regents of the University of the State of New York, 347 U.S. 442, 451 (1954).

[14] See, for example, Murk v. Scheele, 120 S.W.3d 865, 867 (Tex. 2003) (per curiam).

[15] Tex. Occ. Code §§ 162.0021–22.

[16] 22 Tex. Admin. Code § 177.5.