by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
For a Harvard Law School graduate and former “constitutional law professor,” President Obama seems surprisingly confused about federalism and the separation of powers under the US Constitution. His recent words and deeds with respect to the North Carolina law known as “HB2” provide a vivid illustration.
As most readers, I’m sure, know only too well, in February the Charlotte City Council approved an ordinance making it unlawful for private businesses and organizations to:
Deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, religion, sex, marital status, familial status, sexual orientation, gender identity, gender expression, or national origin.
On its face this would appear to forbid separate restrooms, locker rooms, and shower rooms for men and women, and — improbable as it may seem — that is evidently what the City Council intended. Prior to the passage of the ordinance the City Code had already forbidden discrimination on the basis of sex; however, it had also provided an exception for “restrooms, shower rooms, bathhouses and similar facilities which are in their nature distinctly private.” The ordinance that was approved in February repealed that exception in its entirety.
In March the NC General Assembly responded to the Charlotte ordinance by passing House Bill 2. HB2 restored the right of private organizations to make their own rules regarding restrooms, shower rooms, and similar facilities. Regarding public schools and public agencies only, it required that “every multiple occupancy bathroom or changing facility [shall] be designated for and only used by persons based on their biological sex,” while also permitting “accommodations such as single occupancy bathroom or changing facilities upon a person’s request due to special circumstances.”
The President Gets Involved
HB2 inspired an orgy of moral outrage that rapidly spread throughout the US and beyond. On April 23rd, Britain’s Sky News reported that:
During a question-and-answer session in central London … Maria Munir … who does not identify as being either male or female, took the microphone … to question the US President on gender issues.
I’m about to do something terrifying which is coming out to you as a non-binary person….
I’m from a Pakistani Muslim background which inevitably has cultural implications and I know that in North Carolina, people are having to produce birth certificates to go to the toilet….
I wish … you could elucidate, what you can do to go beyond what has been accepted … in including people who fit outside the social norms.
The President did not correct the questioner’s misapprehensions about the law in North Carolina, but — after saying he was “incredibly proud of the steps … you’ve already taken to speak out about your own experience” — he added:
We’re taking a lot of serious steps to address these issues within the federal government.
The challenge we have is that in North Carolina, the law that comes up, it’s a state law and because of our system of government, I can’t overturn on my own, state laws, unless a federal law is passed that prevents that from happening and, with the Congress I have, that’s not likely to happen.
That seems pretty clear. Nevertheless, ten days later his assistant attorney general served Governor Pat McCrory with a letter threatening to take legal action against the State of North Carolina unless the Governor provided swift confirmation “that the State will not comply with or implement H.B.2.”
Seems to Be a Pattern
This is not the first time the President’s actions have contradicted his words regarding the limits of executive power. Soon after he was elected he said:
The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.
Nevertheless, in 2011, with no Congressional consent or approval of any kind, he unilaterally authorized an attack on Libya, despite the fact that Libya did not pose an actual or imminent threat to the United States. Indeed, Libya did not pose any kind of threat to the United States at all.
During his first five years in office, Obama said — repeatedly — that he was legally obligated to execute US immigration law and could not simply suspend deportations by executive decree. For example, on March 28, 2011 he said:
With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books that Congress has passed … we’ve got three branches of government. Congress passes the law. The executive branch’s job is to enforce and implement those laws. And then the judiciary has to interpret the laws.
There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as President.
Nevertheless, in November of 2014 he announced that, notwithstanding the “laws on the books,” his administration was suspending deportation for millions of illegal aliens and making them eligible for various benefits including work authorization.
Maybe he’s not confused. Maybe he knows perfectly well what the Constitution says about presidential power and its limits. Maybe he just doesn’t care.