How do you solve a problem like a rogue agency?
When a Democrat occupies the White House, you can be reasonably sure that administrative agencies will start bending rules to get results that they can’t get through normal procedures.
Witness, for example, the rise of the agency “guidance” document. These are documents that express an agency’s view of what the law is. They are not, however, formal rules that have the force of law.
Still, any regulated entity would be foolish to ignore an agency guidance document because it knows the agency will enforce its new understanding of the law. The agency’s bureaucrats in charge of dishing out fines and other administrative penalties will treat the guidance as if it’s binding.
Think of guidance not as a command, but as an implied threat. Yes, it’s not technically a rule that you have to follow, but if you don’t go along willingly, we’ll break your kneecaps … bureaucratically.
A recent decision by U.S. District Judge Charles Atchley struck a blow against these shenanigans, and that’s a good thing.
The guidance at issue in that case comprised several documents expressing the belief of the Department of Education and the Equal Employment Opportunity Commission that various laws prohibiting sex discrimination in schools and workplaces now guarantee that individuals who say they are transgender may use the bathrooms, showers, and dress codes of their choice. These laws can force others to refer to these individuals using their preferred personal pronouns.
If you read the relevant anti-discrimination laws, you won’t find anything supporting this view, however.
These agencies got the idea from the Supreme Court’s 2019 decision in Bostock v. Clayton County, where the court held that Title VII (the federal law forbidding sex discrimination in employment) prohibits employers from firing employees based on their homosexuality or transgender status.
But the court carefully limited that decision. In writing for the majority in Bostock, Justice Neil Gorsuch wrote:
The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.
Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.’
The employers in that case were right to worry.
President Joe Biden took that decision and ran with it. In his executive order of Jan. 20, 2021, his first day as president, he declared that “laws that prohibit sex discrimination … prohibit discrimination on the basis of gender identity or sexual orientation,” and directed federal agencies to “fully implement” that expansive reinterpretation of the law.
In the view of the Department of Education, Bostock applies to Title IX (which forbids sex discrimination in education), so that schools may be investigated and punished for having sex-specific bathrooms, dress codes, and sports teams. In the view of the Equal Employment Opportunity Commission, Bostock also means that it is workplace sexual harassment to refer to a transgender employee by the wrong pronouns.
These are aggressive readings of Bostock, but that’s not the key problem. The key problem is that the agencies introduced these new interpretations through guidance documents and in doing so skirted a law, called the Administrative Procedure Act, that requires them to comply with a careful and deliberative process before making big legal changes.
The agencies claimed that they did not need to comply with the Administrative Procedure Act because the guidance was nonbinding. But Atchley saw through that deception.
The Department of Education says that its document “will guide the department in processing complaints and conducting investigations.” And the Equal Employment Opportunity Commission invites people to file complaints against employers who violate the legal view set out in its guidance document.
These are nonbinding documents in the same way that an armed robber’s “suggestion” that you hand over your wallet is nonbinding.
Thankfully, several states sued claiming that these guidance documents are, in fact, subject to the Administrative Procedure Act. That would mean that the agencies had to make them available to public comment before issuing them, which the agencies did not do.
In his ruling, Atchley said the states were likely to succeed on this claim. The guidance documents, he noted, were not truly nonbinding.
By expanding the Supreme Court’s Bostock decision, the agencies had created new rights and obligations for students, schools, employees, and employers. The Biden administration had forced the states to choose between the threat of legal consequences—enforcement action, civil penalties, and the withholding of federal funding—or altering their own laws to ensure compliance with the agency guidance and avoid any adverse action, something Atchley called an “untenable” choice.
Additionally, the Department of Education’s rule conflicts with the text of Title IX, where regulations expressly permit sex-separated bathrooms, locker rooms, and sports teams. Finally, the agencies have said that they would enforce these new interpretations.
As such, they’re not mere suggestions, they’re de facto rules. And new rules must comply with the Administrative Procedure Act.
The effect of the judge’s decision is to delay Biden’s aggressive efforts to eliminate protections for women and girls—at least until his new regulations are issued. Those regulations currently are under consideration at the Department of Education.
But more importantly, Atchley has stood up for administrative accountability.
So, how do you solve a problem like a rogue agency? Ideally, you pick a president who won’t tolerate bad administrative behavior.
But failing that, you find a judge like Judge Charles Atchley, who will hold agencies to the law.
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