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Culture War Roundup for the week of April 29, 2024

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Is Nullification on the Horizon?

https://gov.texas.gov/news/post/governor-abbott-condemns-president-bidens-illegal-rewrite-of-title-ix

Recently the Biden admin rewrote some regulations to encode gender identity in title IX. While this is stupid, it's not something that in itself seems likely to be a productive motte top level post. Ken Paxton sued the white house over it, but this is just the default assumption about federal administrative rules on culture war topics. No, what I'm getting at is the letter from Greg Abbott:

Dear President Biden: Title IX was written by Congress to support the advancement of women academically and athletically. The law was based on the fundamental premise that there are only two sexes—male and female. You have rewritten Title IX to force schools to treat boys as if they were girls and to accept every student’s self-declared gender identity. This ham-handed effort to impose a leftist belief onto Title IX exceeds your authority as President.

I am instructing the Texas Education Agency to ignore your illegal dictate. Your rewrite of Title IX not only exceeds your constitutional authority, but it also tramples laws that I signed to protect the integrity of women’s sports by prohibiting men from competing against female athletes. Texas will fight to protect those laws and to deny your abuse of authority.

https://gov.texas.gov/uploads/files/press/O-BidenJoseph1.pdf

I guess telling the federal government to kick rocks back in January and getting away with it set a precedent- and, obviously, Joe Biden is not going to send the troops in to escort male athletes into the high school girl's locker room in an election year.

This obviously raises the question- are we on the cusp of an era where big state governors feel free to resist the federal government? Obviously, being combative with the Biden admin is a political winner for Greg Abbott. It's unclear what he'll use as a replacement for it in the likely event that Trump sits there next year; I don't think he thinks he can get away with bullying New or old Mexico but the strongman image requires something. And, of course, are Ron Desantis and Gavin Newsom and Kathy Hochul watching closely and learning? Will they resist Trump policies as brazenly(no, blue states have not denied federal forces the ability to operate, their examples of arguable nullification are more noncooperation than open defiance and resistance) as Abbott does Biden's, given that he's emboldened by a base which may not be pro-secession but is absolutely confident Texas would be fine if it did happen?

What Abbott is doing is a little different. He and a few other Governors are challenging the rule change in court and telling their states not to make any changes while the lawsuits are on going.

Keep in mind that this is a re-interpretation of existing laws, not any new law. So the Executive Branch is on shakier ground.

The SCOTUS is re-examining Chevron deference and is about to make a ruling. So the Governors are on pretty strong legal ground to delay things until that ruling comes down and they've had their day in court under whatever the new standards are.

So really it's much less brazen than what blue states have been doing, where they've been ignoring specific that have been upheld as valid. Also there was that situation in 2020 where Antifa kept trying to burn down a federal courthouse in Portland and the city / state refused to defend it.

So really it's much less brazen than what blue states have been doing, where they've been ignoring specific that have been upheld as valid.

Except, despite this, it'll be treated as an egregious assault on federal authority — unlike the actions of said blue states — and suppressed accordingly. Blue states get to defy Red rules, Red states do not get to defy Blue rules. It's not hypocrisy, it's hierarchy, and Reds are just powerless.

Do we have any idea when a ruling on Chevron could be expected and how sure are we that it's actually on the chopping block?

Oral argument of Loper-Bright Ent. v. Raimondo, where the question presented is explicitly whether to overturn Chevron, was back in January. Relentless, Inc. v. Dep't. of Commerce, a related case with a similar QP was heard the same day. Decisions for cases heard this term have to be issued by summer.

I also suspect the rule change runs into due process issues (state action requiring a process to impose punishment that is clearly lacking in fundamental fairness) and State Farm challenge as well. Ironically, the gender stuff is probably on the safest ground thanks to Gorsuch’s terrible opinion (even the greats sometimes muck it up).