Source: Patrick J. Gibbs
It has been building up to this point for the past 250 years. The U.S. Constitution was originally designed to divide the powers of the federal government among its three different branches (Congress, Executive, and Judiciary). The 10th Amendment to the Constitution went further and reserved to the States respectively, or to the people “the powers not delegated to the United States.” This separation of powers was intended to prevent a consolidation of power that would inevitably lead to the end of representative government.
James Madison warned of this danger in Federalist No. 47 stating, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
There is a case now pending in the 8th Circuit Court of Appeals that perfectly illustrates how close we are to that danger becoming a reality. College of the Ozarks v. Biden involves the attempt of the U.S. Department of Housing and Urban Development (HUD) to impose a “directive” issued in February 2021 to all colleges and universities to require them to follow HUD’s policies on “sexual orientation and gender identification” and thus end the practice of maintaining separate housing by biological sex.
Those policies would compel the college to “start letting men into our young women’s dorm rooms, showers and locker rooms” according to an op-ed piece by Jerry C. Davis, the college’s president, in the Nov. 17, 2021, Wall Street Journal. He went on to argue that HUD’s agenda was a two-pronged attack on the First Amendment. The college has the right of free speech to assert that men and women are different and the religious right to provide an education “in an environment that lives the truth of Genesis 1:27: ‘male and female He created them.’”
The alternative to compliance is prosecution by HUD for violation of the Fair Housing Act with sky-high fines and damages, not to mention civil litigation under the FHA.
The case is an appeal from the denial of injunctive relief by a U.S. District Court to prevent any enforcement of the “directive.” The complaint alleged the misinterpretation of the FHA which was enacted in 1968 to mainly prevent discrimination in the sale or rental of housing on the basis of “race, color, religion, or national origin.” Sex discrimination was added six years later.
The complaint also alleged a failure to observe the Administrative Procedures Act when HUD promulgated what amounts to regulation without following the rule-making process required by the APA.
HUD is relying upon the Supreme Court’s decision in Bostock v. Clayton County, GA, (2020) which held that “sex” in the prohibition of employment discrimination on the basis of sex in Title VII of the Civil Rights Act of 1964 included sexual orientation and gender identity.
This was welcome news to certain members of Congress who have been unsuccessfully proposing amendments to Title VII in recent years to add sexual orientation and gender identity as protected categories. Justice Samuel Alito started his vociferous dissenting opinion in Bostock, “There is only one word for what the Court has done today: legislation.”
As founded, the United States was a constitutional republic in which the people ruled through their elected representatives in Congress which was given “the legislative power” in Article I of the Constitution.
Fifty years ago, constitutional government was attacked by a left-wing majority on the U.S. Supreme Court. It grabbed the legislative power from Congress by fabricating constitutional rights unknown in this country in the preceding 200 years. In Griswold v. Connecticut, the Court found a “right of privacy” in the “penumbra” of the 4th Amendment that in turn was expanded to give women a right to abort an unborn child in Roe v. Wade (1973). Similarly in Obergefell v. Hodges (2015), the Court struck down state laws that defined marriage as a union of one man and one woman. Both were 5-4 decisions.
These legislative acts by five unelected attorneys with lifetime appointments directly attack the right of the people to govern themselves through their elected representatives. With the Bostock decision, the Court amended the Fair Housing Act by redefining the word “sex.” That legislative act is almost as bad as the invention of a constitutional right. It will only take a 60-vote majority in the Senate to undo the Bostock legislation. A constitutional amendment requires a 67-vote majority in the Senate.
The creation of numerous regulatory agencies in the past 90 years has also diluted legislative power. Now agencies adopt substantive rules having the force of law that are loosely based on vague pronouncements in statutes passed in Congress. Rather than take on tough policy decisions, members of Congress delegate legislative power to unelected bureaucrats. When a constituent complains to his congressman, he can pass the buck by blaming the regulators.
The passage of the Civil Service Act in the late 19th century has similarly proven to be corrosive of the executive power given to the President by Article II of the Constitution. When permanently appointed bureaucrats are protected from discharge for failing to follow the President’s policies, his executive power has been usurped.
The unelected majority sitting in the Supreme Court and the unelected bureaucracy in the executive branch is like a two-headed monster from Greek mythology. One threatens the right of the people to be governed only by legislation enacted by elected representatives. The other threatens their right to elect a President whose exercise of the executive power is not thwarted by bureaucrats he can’t fire when they follow their own policy preferences instead of his.
Defeating this monster will take years of effort by an informed electorate and political leaders who want to restore a government accountable to that electorate. Some people believe it will require a convention called by the States under Article V of the Constitution to propose amendments to the Constitution. They claim that this sidesteps Congress but still requires ratification by three-fourths of the States.
If we don’t stop the monster, it threatens to eat our Constitution and spit out a form of government unrecognizable to our Founders.