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. How do you solve a problem like a rogue agency? The answer is guidance documents that express an agency’s view of what the law is.
The guidance at issue in that case comprised several documents expressing the belief 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
- If you read the relevant anti-discrimination laws, you won’t find anything supporting this view
- The agencies got the idea from the Supreme Court’s 2019 decision in Bostock v. Clayton County
- In his executive order of January 20, 2021, Biden 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
Several states sued claiming that these guidance documents are, in fact, subject to the Administrative Procedure Act.
- The Biden administration had forced 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.
How do you solve 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.
- As a result, he has stood up for administrative accountability.
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