Court's smackdown of Obama is about more than just transgender policies

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Published by: Dan Calabrese on Tuesday August 23rd, 2016

It's about the abuse of the tax code to undermine federalism and the constitutional separation of powers.

You probably saw yesterday - and maybe you celebrated - the news that a federal judge has ordered a nationwide halt to the Obama policy of requiring states, cities and school districts to accommodate "transgender" bathroom usage or face the loss of federal funds. It's certainly good news that the transgender nonsense has suffered a defeat.

But if you think that's all this is about, you're missing a much larger point. Obama and the Democrats don't even really care all that much about so-called transgender people. This is really an attempt to use the issue of the day to seize control for the executive branch over the states. When the media portray this as a ruling "against transgender students and employees," they're missing that larger point:

U.S. District Judge Reed O'Connor's 38-page order said federal agencies exceeded their authority under the 1972 law banning sex discrimination in schools. The injunction applies nationwide, and follows a number of other recent court rulings against transgender students and employees.

The Texas ruling, issued late Sunday, turned on the congressional intent behind Title IX of the Education Amendments of 1972, which requires that "facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex."

"It cannot be disputed that the plain meaning of the term sex" in that law "meant the biological and anatomical differences between male and female students as determined at their birth," the judge wrote. "Without question, permitting educational institutions to provide separate housing to male and female students, and separate educational instruction concerning human sexuality, was to protect students’ personal privacy, or discussion of their personal privacy, while in the presence of members of the opposite biological sex."

Now I don't like everything about this ruling. Judge Reed puts way too much emphasis on the public comment period for the new regulation, as if this would have been perfectly fine if only that had been given sufficient attention.

The real problem with the policy in the first place is that it's a blatant attempt to run roughshod over the separation of powers. And it starts with the tax code.

The best way to explain it is in simple steps: 1. The federal government confiscates massive amounts of capital via the federal tax code, then through the wondrous goodness of "federal revenue sharing" and other various programs, sends it back to the states in a manner proscribed by politicians. 2. Congress approves how much will be sent to the states and the programs by which it will be sent, but the executive branch maintains for itself the authority to establish the requirements by which units of government will be eligible to receive the money. 3. Because so much money has been taken by Washington in the first place, states, cities, counties and school districts feel absolutely dependent on federal funding. Whatever rules the administration establishes for funding eligibility, they basically have no choice but to accept. 4. Thus, Obama can unilaterally impose any regulation he wants on every unit of government below the federal government, because their dependence on federal funding gives them no choice but to comply.

This goes completely against every principle of federalism, which envisions the states as free to govern themselves as they see fit with very minimal interference from Washington. In the model favored by Obama and cheered on by the media, the states are rogue entities that must be brought under control by the federal government, and the threat to withhold federal funding is a brilliant and admirable method by which to do so.

Perhaps the reason Judge Reed doesn't fully address this in his ruling is that this is really a problem for Congress to fix. It needs to throw out the existing tax code and replace it with one that only levies federal taxes to the extent necessary to fund operations of the federal government. Washington does not need to operate as a big money laundering operation that takes money from cities and states only to send it back as Washington politicians deem appropriate. Let cities and states levy their own taxes and make their own decisions, with accountability to their own residents, not to the powers that be in Washington D.C.

Today it's transgenderism. But unless this system is fixed, it could be anything tomorrow. And liberals who think this is all perfectly fine because they agree with the agenda being served will be the first to hoot and holler when a Republican president uses the exact same power in the same way. The truth is that no president should be exercising power over local and state governments in this way. That's the real danger of Obama's transgender bathroom policy - that it makes Obama a dictator over everyone who depends on federal funding, which, thanks to the current tax code, is just about everyone.

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