When you’re having a debate over a single state passing a law which applies only to residents of that single state, the first thing you want to do is get the federal government involved. (The 10th Amendment is just so out of style, you know.) Still, that’s the essence of the latest round of saber rattling coming out of Washington over North Carolina’s new bathroom privacy law. It’s not politically correct enough for the Left, so rather than leaving it to the voters of the state or waiting for a challenge to play out in the courts, several departments under the Obama administration are already hinting that they may cut off federal funding in up to three areas if the state government doesn’t bend to the will of the SJW. (New York Times)
The Obama administration is considering whether North Carolina’s new law on gay and transgender rights makes the state ineligible for billions of dollars in federal aid for schools, highways and housing, officials said Friday.
Cutting off any federal money — or even simply threatening to do so — would put major new pressure on North Carolina to repeal the law, which eliminated local protections for gay and transgender people and restricted which bathrooms transgender people can use. A loss of federal money could send the state into a budget crisis and jeopardize services that are central to daily life.
The first question which likely comes to mind for many observers is… can they do that? Can Washington just cut off federal funding to which the state would otherwise be entitled? Well, the answer is a somewhat qualified “yes” in most cases, but there are a number of complicating factors. The starting point is to say that they can, but that’s because all of the funding in question is largely extra-legislative in nature, controlled by departments of the Executive branch after the funding is initially approved by Congress. And both education and transportation funding have been used (or at least threatened or attempted to be used) as weapons against the states in the past to ensure compliance with dictates from Washington.
Last year, the Department of Education threatened to withhold school funding for New Jersey if they refused to comply with requirements set up in the Partnership for Assessment of Readiness for College and Careers (PARCC) program. That was hardly the first time, since those funds are regularly used as blackmail. But the key feature to note here is the program in question was most definitely related to the school system in the state. Fair or not, the argument could be made that New Jersey’s actions were impacting the system directly related to the federal department dishing out the cash.
There have been several times when the Department of Transportation either threatened to withhold or actually withheld highway bill funds from states. One legal challenge arising from this financial arm twisting, South Dakota v. Dole, went all the way to the Supreme Court. But that was over states failing to comply with federal minimum drinking age laws. Yet again, the feds successfully made the case that drunken driving accidents were part of the equation. Earlier challenges involving the federal 55 m.p.h. speed limit in the 80s let to similar battles. All of them had to do with federal laws and protections which were put in place with the states refusing to come into compliance.
In reality, those departments are only supposed to consider intervening on the basis of either non-compliance or “discrimination” if the state does something which runs up against parallel laws and guidelines at the federal level. This North Carolina legislation is incorrectly described as failing to provide protections for “transgender” citizens. You know who else doesn’t have “transgender” protections built into the law? The federal government.
At least for the time being this is almost certainly an empty threat on the part of the Obama administration. For them to turn around and shut off funding for either the schools of North Carolina or their transportation infrastructure would be a massive overreach and prompt an immediate challenge in the courts. And this is a challenge they could very well lose, delivering a black eye to the administration. Still, it’s yet another example of the feds trying to run roughshod over states’ rights, which is sadly nothing new these days.