The people of Fairfax County, Virginia are up in arms. They have every right to be. Obama's federal government has dictated that they adopt a new, controversial social policy which they never voted to approve, nor did their representatives in Congress:
A plan to add “gender identity” to a Virginia school’s nondiscrimination policy has enraged parents and preachers, but leaders of the nation’s tenth largest school district say unless they make the change, the U.S. Department of Education could withdraw federal funding.
Critics warn the Fairfax County Public School policy would allow boys who identify as girls to use the locker rooms and bathrooms of their choice – as well as participate on athletic teams of their choosing.
Martin Baker, the pastor of Burke Community Church, warned that “the damage and destruction to our children, teens and impacted adults will be incalculable.”
“Everything from locker rooms to bathrooms will be potentially open for people who simply feel that their inner sexuality does not match their outer, physical sexuality,” he wrote in an email to the 3,000-member congregation.
“This is not just shocking, it is morally and spiritually abhorrent, and that is why I am convinced this is one cultural issue where we, as a church, must speak up and out with clarity, compassion and conviction,” he added.
But the deputy superintendent of Fairfax County Public Schools said they have no choice but to provide specific protections for transgender students. A vote on the issue is expected Thursday night.
“The Office of Civil Rights of the U.S. Department of Education is requiring that school divisions revise their non-discrimination policies to include gender identity,” Deputy Superintendent Steven Lockard wrote in a memorandum to school board members.
He also said the federal government was requiring the district to hire a consultant to advise them on how school divisions should handle individual cases of transgender students.
“If FCPS refuses to amend its policy, OCR has the right to recommend the termination of federal funding to FCPS,” Lockard wrote.
There is not a law that has been passed through Congress providing civil rights for the transgendered. That is an issue of social policy on which the people have the Constitutional right to be heard through their elected representatives, period. So how has it come to pass that the Office of Civil Rights of the U.S. Department of Education has bypassed Congress and unilaterally opted to impose this new social policy on our nation and on Fairfax County, Virginia?
In 2014 the Title IX civil rights law was updated to address sex discrimination “based on gender identity or failure to conform to stereotypical notions of masculinity or femininity” and protect students “who do not conform to sex stereotypes.”
Title IX, when it was passed by Congress in 1972, was directed to providing equality in educational opportunities between the male and female gender. This new update is nothing more than an outrageous reinterpretation by the Obama DOJ that goes far beyond the Congressional intent of the law as passed. It is now being used to force leftist social policy on our nation.
Art. 1, Sec. 1 of the Constitution provides that Congress is the sole body with the authority to legislate. The problem posed by the DOJ's willingness to interpret laws so ridiculously divorced from their intent as to constitute new legislation is one part of the problem of our out of control federal government.
Yet a second problem is posed by President Obama himself. He has caused an existential Constitutional crisis with his plan to grant rights and a path to citizenship to millions of illegal aliens. It is a legislative act for which he has no Constitutional authority. Acting without the consent of Congress, that amounts to tyranny. We fought a revolution over that to become a nation in the first place.
The third problem - the rise of agencies with the authority to pass regulations with the full force and effect of law, yet which have never been voted upon by our elected representatives. Particularly abhorrent is the FCC's recent unilateral decision to assume regulatory control over the internet based on a 1934 law that applied to monopolistic phone companies. But perhaps the most damaging of the out of control agencies at the moment is the EPA. The EPA has claimed vast powers - some of which failed to pass Congress as recently as 2009 - to regulate our energy sector. This from City Journal:
. . . [T]hough Congress refused to pass a law addressing climate change, Tribe points out, the EPA is behaving as if it has the authority Congress refused to give it, wielding the Clean Air Act in ways Congress not only didn’t authorize but also expressly forbade in the Act itself. Moreover, though Tribe doesn’t say so, it is clear that this executive-branch agency is trying to use its non-existent legislative-branch mandate to carry out a highly contentious, highly partisan policy of the Obama administration. As the New York Times quotes one anonymous former administration official, “Whether he intended it or not, Tribe has been weaponized by the Republican Party in an orchestrated takedown of the president’s climate plan.” Moreover, Tribe reports himself mystified as to how the EPA has the gall to contravene the federal government’s “promotion of coal as an energy source,” and to envision, in contravention of the Fifth and Tenth Amendments, shutting down not just a major industry, but also the way of life of whole communities and indeed a whole region of the country.
What is most important about Tribe’s involvement in this case is that he lends his considerable professional authority and impeccable liberal credentials to an increasingly loud chorus that questions the constitutionality of the Administrative State that has developed ever since the establishment of the Interstate Commerce Commission in 1887. Unlike the Founding Fathers, Progressive politicians, with Theodore Roosevelt and Woodrow Wilson in the lead, envisioned government not of, by, and for the people, but rather by highly trained, nonpartisan experts who would use the latest scientific knowledge to make better regulations for people than they could make themselves through their elected representatives.
This enterprise was unconstitutional, even un-American, in itself. But as the administrative agencies developed — as they violated the Madisonian principle of separation of powers by merging together executive with legislative power, which the legislature had no constitutional right to delegate, and with judicial power, which the legislature most certainly had no right to delegate — promulgating rules, charging people and corporations with violations of them, and exacting penalties without the benefit of grand or petit juries, in defiance not only of the American Bill of Rights but even of the Magna Carta, they evolved into an utterly unaccountable government that is nothing like the democratic republic the Founders envisioned. What’s more, with lobbyists having so much sway over them and often writing their regulations, the administrative agencies turned into the guarantors of crony capitalism, protecting giant corporations against competition from upstarts, just as the ICC protected the railroad cartel 132 years ago.
The fourth problem is perhaps the most dangerous -- unaccountable, activist judges who feel free to impose their social policy preferences on our nation under the guise of Constitutional interpretation. We've seen this in countless areas, such as with religion and abortion. The issue of the hour is "gay marriage." One federal court after another has struck down laws defining marriage as between a man and a woman using a laughable interpretation of the Equal Protection clause. No one can claim with a straight face that, when the Equal Protection clause was enacted shortly after the end of the Civil War, that the people voting for it meant it to apply to homosexuals. Homosexuality was under legal disability throughout most of the states at the time and remained so for over a century. That makes gay marriage an issue of social policy for each state to decide on its own unless and until our Constitution is amended in respect thereof. In no event is this an issue to be decided by five unelected judges sitting as a sort of politburo and dictating to our nation what they personally want our new social policy to be.
In 1787, as Ben Franklin emerged from behind the doors of the Pennsylvania State Hall, at the conclusion of secret deliberations of the Constitutional Convention, a woman asked him "Well, Doctor, what have we got, a republic or a monarchy?" Franklin famously replied, “A republic, if you can keep it.”
For over two centuries, we did manage to keep it, more or less. But no longer. Our Founding Fathers would not recognize our form of government today, despite the fact that there have been no substantive Constitutional Amendments to alter its design.
While our Republican form of government managed to coexist with activist courts and a parallel legislature in the regulatory bureaucracy for decades, it is only under the Obama regime that the left has truly come to warp and exploit the entire panoply of our government institutions to work non democratic fundamental changes to our nation. We have ceased to function as a republic and now function as a sort of hybrid tyrannical regulatory bureaucracy. This needs to end and the course corrected soon else we will never be able to return this nation to a republican form of government absent bloodshed. The 2016 election will be one of existential importance to our nation.