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Notes -
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:
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?
That’s not a nullification. I’d say the correct remedy for opposing a law is challenging it in court, and Abbott’s doing that. But since this isn’t a law passed by Congress, it’s hard to fault him for instructing his administration on how to implement their administrative change.
Now, there’s a little problem. The USED already implements other Title IX athletics rules. Seeing as those aren’t being challenged, I assume Congress explicitly delegated the power at some point. Either that, or it was assumed through the ever-popular federal funding mechanism.
So what makes this different? If it were an Executive Order, I’d understand the case for a Constitutional violation. But this is a “Notice of Proposed Rulemaking.” See here. It sure sounds like business as usual. If so, the federal government has its obvious recourse: cut federal funding. No Constitutional wrangling necessary.
That’d probably be a big win for Texas Republicans. The rule is being spun as “destroying women’s sports” already. Actually reducing any federal funds? Free leverage for Abbott. As much as I resent the guy, he’s set up a decent gambit. Hard to blame him, when Biden’s agencies are being such partisan hardliners—
Oh.
Well, no one was going to look at the actual rule, anyway. And if they did, they’d surely see that it’s a trap; no restriction could ever survive the captured, liberal media blitz. And if it did, the deep state would bury it. And if they didn’t, those partisan judges would have to legislate from the bench to stop it. And if they didn’t, well, Biden would obviously send the 101st Airborne to escort a minimally-sympathetic trans woman into your daughter’s locker room. Or worse, do it himself. And you don’t want Sleepy Joe near your daughter, do you?
Far better to make political hay now, before all that unpleasantness can get started.
Abortion was made a constitutional right by first finding a roght to privacy, and then discovering abortion being made illegal violates this right (but only in the first trimester). Or how interstate commerce was taken to mean intrastate, as any change in latter could by substitution effect, affect the former.
Here the courts wouldn't need to be so imaginative to make the most extreme trans activists demands, allowing any female-idenfying person to participate in women's sport, law. "Proposed regulation's other requirements" could be made arbitrarily more difficult to satisfy, as ban on IQ tests in employment shows. @The_Nybbler has on several occasions succesfully shown that if reqs are stringent enough, and organizations risk averse enough, a chilling effect occurs.
Not only was it taken to mean intrastate, it was also taken to mean lack of commerce.
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