DALLAS, Texas—In his speech to the Democratic National Convention, Khizr Kahn, the father of a fallen American Muslim soldier, held up a pocket-sized copy of the U.S. Constitution and rhetorically asked Donald Trump, “Have you even read the United States Constitution?”
It’s a good question—for all Americans. Because those who read it will find nothing giving the federal government the authority to manage national bathroom policy.
In fact, as readers reach the end of the Bill of Rights they will discover the Tenth Amendment, which says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Thus, when the city of Charlotte, North Carolina, created a bathroom law requiring city buildings to allow people to use the public bathroom according to the gender they identify with, the state government stepped in and overrode it. Whether it should have or not is a different issue—it did.
And under our federalist system, state governments have the right to do so unless the Constitution expressly prohibits it.
So why does the Obama Administration’s Justice Department think it has the power to micromanage bathrooms—a power no one saw in the Constitution’s 225-year history?
The Justice Department points to the 1964 Civil Rights Act, along with the Education Amendments of 1972, which outlawed discrimination based on race, color, sex or national origin—referring to the sex you are, not the sex you claim to be—which would accommodate those who have had sex reassignment operations.
In 2014 the Department of Education decided to extend that non-discrimination provision to “gender identity or failure to conform to stereotypical notions of masculinity and femininity” in cases of sexual violence at federally funded public schools.
Few balked at that change, even if it improperly expanded the meaning of the actual law, because no one wants sexual violence or harassment.
But in 2015, the Education Department took a much bigger and more dubious step: It extended the non-discrimination provision to the use of bathrooms and locker room facilities. And it may be extended to dorm rooms, which means a person who self-identifies with the opposite sex could be cohabitating with those classmates for months, not the few minutes it takes to use the restroom.
In short, bureaucrats decided to make law without congressional input or approval. It’s something the Obama Administration has done frequently.
To get states to comply with the bathroom mandate, the Justice Department is trying to bribe them with taxpayer-provided funds. If states want the federal money public schools depend on, then they must conform to the federal government’s demands.
Obviously, that’s a lot of money. The Congressional Research Service says the federal government returned an estimated $628 billion in grants and aid to state and local governments in 2015—with perhaps $80 billion of that slated for education.
So Washington takes your tax money and says it will return some of it to your state, but only if your state and public schools do what Washington bureaucrats claim to be the law.
Oregon willingly adopted a transgender bathroom policy in May, and other states may follow. But 13 states have sued the Obama Administration over this issue, claiming it has overreached its authority, and a federal judge recently sided with those states. However, another federal judge has blocked North Carolina’s efforts to prohibit such use.
The authors of the Constitution created a federalist system that leaves such matters to the states, and they won’t all agree. As Mr. Obama told the Democratic Convention, “It can be frustrating, this business of democracy.”
People who want to move faster may applaud federal agencies’ efforts to bypass Congress and impose their will. But those who gleefully support such power-grabs should remember that any government powerful enough to create new rights is powerful enough to take away all rights.