What’s Next for Trump’s Blocked Sanctuary Cities Order?

Judge William Orrick recently issued an injunction blocking enforcement of Trump’s sanctuary cities executive order. Amid proposals to shut down the government over federal payments to sanctuary cities, what can cities expect to happen in the next few days?

San Francisco is one of a number of cities that have sued the president over the sanctuary cities executive order. (Getty Images)

A federal district court has issued a nationwide preliminary injunction preventing the Trump administration from enforcing the sanctuary jurisdictions portion of the Enhancing Public Safety in the Interior of the United States executive order (EO).

The court was asked to accept two very different interpretations of what this EO means to determine whether it had jurisdiction to hear this case. The most important dispute between the parties is how much federal funding is on the line. Judge William Orrick sided with the interpretation made by the cities of Santa Clara and San Francisco, accusing the Department of Justice (DOJ) of trying to “read out all of Section 9(a)’s unconstitutional directives to render it an ominous, misleading and ultimately toothless threat.”

Section 9 of the EO says that jurisdictions that refuse to comply with U.S.C. 8 § 1373 are ineligible to receive federal grants. On its face, Section 1373 prohibits local governments from restricting employee communication of immigration status information to Immigration and Customs Enforcement (ICE).

According to DOJ, the EO only applies to three federal grants (SCAAP, JAG and COPS) which Congress has conditioned on complying with Section 1373. The court called this interpretation “toothless,” pointing out “the [federal] government can already enforce these three grants by the terms of those grants and can enforce U.S.C. 8 § 1373 to the extent legally possible under the terms of existing law.”

Santa Clara and San Francisco argued that the EO as written purports to take away all federal grant funding from sanctuary jurisdictions. And statements by the Attorney General indicate that compliance with Section 1373 may require cities and counties to honor voluntary ICE detainers. Numerous courts have held that complying with warrantless civil ICE detainers violates the Fourth Amendment.

After determining it had jurisdiction to hear this case, the court concluded that Santa Clara and San Francisco are likely to succeed on the merits of a number of constitutional challenges. Here are three constitutional problems the court identified:

Separation of powers
Congress, not the president, is able to attach conditions to federal funds. As the court stated, “Congress has repeatedly, and frequently, declined to broadly condition federal funds or grants on compliance with Section 1373 or other federal immigration laws as the executive order purports to do.”

Spending Clause
Even assuming the president has spending power to condition the receipt of federal funding, the EO would likely be unconstitutional under the Tenth Amendment. The Supreme Court has limited the conditions Congress can place on federal funds. As this applies to the EO, all federal grants are not “unambiguously” conditioned on compliance with Section 1373, there is no nexus between Section 1373 and most categories of federal funding, and it would be “coercive” to deny sanctuary jurisdictions all federal funding.

Tenth Amendment
To the extent the EO requires honoring civil ICE detainers, the court stated “it is likely unconstitutional under the Tenth Amendment because it seeks to compel the states and local jurisdictions to enforce a federal regulatory program through coercion.”

The practical effect of this decision is that, at least for now, the only federal money that can be taken away from sanctuary jurisdictions is federal grants conditioned by Congress on compliance with U.S.C. 8 § 1373 (a category which DOJ claims includes only three grants).

This decision isn’t a ruling on the merits — it is only a preliminary determination that the EO is likely unconstitutional. Via Twitter, President Donald Trump has stated, “See you in the Supreme Court.” Before that happens, this ruling will likely be appealed to the Ninth Circuit.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.

Local Governments Sue Over Sanctuary Jurisdictions Executive Order

The executive order is under litigation – but how worried should cities be that the president will actually take away money from sanctuary jurisdictions in the near future?

San Francisco is one of a number of cities that have sued the Trump administration in response to the sanctuary cities executive order, arguing that enforcing federal immigration laws does not relate to federal funding they receive for infrastructure, health care, education or other fundamental systems. (Getty Images)

Five days after assuming office, President Donald Trump signed an executive order threatening to take away federal funding from so-called sanctuary jurisdictions. The executive order leaves it to the Secretary of Homeland Security to define “sanctuary jurisdictions.” Unsurprisingly, a number of cities and counties have sued the president over this executive order, including Santa Clara County, San Francisco and Richmond, California, Seattle, and Lawrence and Chelsea, Massachusetts.

By mid-April, a court will likely grant or deny a preliminary injunction in the Santa Clara County case. We know the legal allegations the cities and counties have made against the president, and the president has responded to the Santa Clara County and San Francisco lawsuits.

All of the complaints make different arguments and frame the legal issues slightly differently. Here are the three main arguments:

1) Spending Clause

The U.S. Constitution’s Spending Clause allows Congress to place conditions on federal money local governments receive. The local governments argue that Spending Clause authority resides with Congress – not with the president. Even if Congress had the authority to take away federal funding from sanctuary jurisdictions per the Spending Clause, the president lacks the same authority as a matter of separation of powers.

The Supreme Court has ruled that conditioning the receipt of federal funds may not be coercive, and that the conditions must be stated unambiguously and relate to the federal interest in the grant program. The local governments suing President Trump argue that these requirements are not met.

In NFIB v. Sibelius (2012), Chief Justice John Roberts famously described the Affordable Care Act’s requirement to withhold all Medicaid funding if states refused to agree to the Medicaid expansion as a coercive “gun to the head.” In that case, states stood to lose more than 10 percent of their overall budget by not agreeing to the Medicaid expansion. Santa Clara County, for example, claims it will lose 15 percent of its budget if it loses all federal funding.

The Supreme Court has stated that when Congress, using its spending power, imposes conditions on the receipt of federal funds, it must do so “unambiguously.” None of the federal funding local governments receive requires them to participate in enforcing federal immigration laws.

Likewise, the Supreme Court has held that the conditions Congress places on federal grants must be “germane” or “related to” the federal interest in the grant program. The local governments argue that enforcing federal immigration laws does not relate to federal interests in federal funding they receive for infrastructure, health care, education, etc.

2) Fourth and Tenth Amendments

The sanctuary jurisdictions executive order states that the attorney general may take “appropriate enforcement action” against any entity which has in effect a “statute, policy or practice that prevents or hinders the enforcement of federal law.” This language – and the fact that the executive order reestablished Secure Communities and requires the Secretary of Homeland Security to publish a weekly list of jurisdictions that don’t honor Immigration and Customs Enforcement (ICE) detainers – has lead local governments to conclude that the executive order requires local governments to comply with ICE detainers.

In their lawsuits, the local governments claim that complying with ICE detainers violates the Tenth and Fourth Amendments.

When someone is arrested, ICE receives their fingerprints and may request through an ICE detainer that a local government hold the person so that ICE can pick them up and deport them. Numerous courts have held that complying with ICE detainers violates the Fourth Amendment because such detainers are rearrests not supported by a warrant.

Following the sanctuary jurisdictions executive order, Miami-Dade County decided to comply with ICE detainers and was sued. A judge ruled that Miami-Dade County lacks the power under the Tenth Amendment, which reserves powers not delegated to the federal government to the state, to comply with warrantless ICE detainers. Enforcing federal immigration law is the sole responsibility of the federal government.

3) 8 U.S.C. 1373

The sanctuary jurisdictions executive order requires local governments to comply with 8 U.S.C. 1373. This statute bars prohibitions on government entities from maintaining or sharing citizenship or immigration status information.

The local governments suing in this case note that 8 U.S.C. 1373 does not require them to collect information about immigration status. They do not collect this information and are therefore in compliance with 8 U.S.C. 1373, they argue.

San Francisco argues that it complies with 8 U.S.C. 1373 but that the statute violates the Tenth Amendment. The Supreme Court has interpreted the Tenth Amendment to contain an anti-commandeering requirement wherein local governments cannot be required “to enact or administer a federal regulatory program.”

Federal response

President Trump’s response to the Santa Clara County and San Francisco complaints should alleviate any fears that the president intends to take away any money from sanctuary jurisdictions any time soon. The administration’s response to the Santa Clara County complaint describes five steps which would have to occur before any local government will be deprived of federal funds (none of which have yet occurred):

(1) the Attorney General and the Secretary of Homeland Security must determine exactly what constitutes “willful refusal to comply with 8 U.S.C. § 1373;” (2) the Secretary must identify any state or local governments that constitute “sanctuary jurisdictions” and make formal designations to that effect; (3) the Secretary and the Attorney General must decide which federal funding sources are “necessary for law enforcement purposes;” (4) the Secretary and the Attorney General must then determine how to “ensure” that sanctuary jurisdictions are ineligible to receive the relevant grant funds; and (5) the Secretary and the Attorney General must determine how to implement those actions “consistent with law.”

A few aspects of the administration’s response to the Santa Clara County and San Francisco complaints are noteworthy.

First, both responses avoid defending the constitutional claims; instead, the administration argues that, because no federal funding has been taken away from either local government, the cases aren’t yet ready to be reviewed by a court.

Second, the administration disavows the notion that all federal funding can be taken away from sanctuary jurisdictions. More specifically, in the Santa Clara County complaint, the administration argues that only jurisdictions that “willfully refuse to comply” with 8 U.S.C. 1373 become “not eligible to receive Federal grants.” But as Santa Clara County points out in its response, “it is telling that the administration neither identifies a single grant that imposes that condition nor addresses the numerous bills to do so that Congress considered and rejected.”

Finally, both administration responses conspicuously avoid any acknowledgement that the executive order may require local governments to comply with warrantless ICE detainers.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.

Update: The Gorsuch Confirmation Hearings

While federalism was rarely discussed, and preemption wasn’t discussed at all, one particular issue of interest to local governments was explored at length.

Judge Neil Gorsuch testifies before the Senate Judiciary Committee during his confirmation hearing on Wednesday, March 22, 2017. (Wikimedia Commons)

Confirmation hearings generally follow a predictable course, and Judge Neil Gorsuch’s hearings have been no exception. In most cases, senators not aligned with the president’s political party ask the nominee pointed questions on controversial topics which the nominee does his or her best to politely avoid answering. As a result, issues of interest to state and local governments often receive little meaningful attention.

Apart from two notable exceptions during Judge Gorsuch’s hearings – one occasion when a friendly Senator Jeff Flake (R-AZ) asked Judge Gorsuch whether his ruling in a particular case was consistent with the “principle of states as laboratories of democracy,” and another occasion when friendly Senator Mike Crapo (R-ID) asked Judge Gorsuch to discuss the Tenth Amendment – federalism was rarely discussed, and preemption wasn’t discussed at all. Likewise, many issues of particular importance to local governments, such as qualified immunity and property rights, were also not explored.

Judge Gorsuch did state numerous times that judges should not act as legislators. “I get four law clerks, [each] for one year at a time. If you were to make laws, you wouldn’t design a system where you’d let three older people with four law clerks straight out of law school legislate for a country of 320 million people.”

Judge Gorsuch was also not asked about his concurring opinion from last year in Direct Marketing Association v. Brohl in which he strongly implied that, given the opportunity, the U.S. Supreme Court should overrule Quill Corp. v. North Dakota (1992). In Quill, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax.

The issue of most interest to state and local governments discussed more at length was Justice Gorsuch’s views on Chevron deference.

In Chevron v. NRDC (1984), the Supreme Court held that courts should defer to reasonable agency interpretations of ambiguous statutes. State and local governments generally prefer that courts not defer to federal agency regulations because this deference gives federal agencies a lot of power.

Less than six months ago, Judge Gorsuch criticized Chevron deference in a concurring opinion, leading to speculation that, if he becomes a Supreme Court Justice, he would vote to overrule Chevron. When asked about this concurring opinion, Judge Gorsuch stated that he wrote separately “to tee up questions for my bosses [the Supreme Court justices].” He continued: “I don’t know how I would rule if I were a Supreme Court justice on the question.”

Apart from the question of whether Judge Gorsuch believes in precedent (he does, and has written a book about it), three additional cases/topics came up repeatedly during the confirmation hearings. Judge Gorsuch avoided expressing opinions on Roe v. Wade (1973; abortion) and Citizens United v. FEC (2010; campaign finance), stating they are “the law of the land.” He was also asked to defend his dissenting opinion in the “frozen-trucker case” wherein the majority of the court ruled in favor of a truck driver who claimed he was wrongfully fired for disregarding his supervisor’s instructions to stay with a broken down trailer in freezing weather.

Unsurprisingly, Judge Gorsuch came to the hearings prepared. When accused of not being a friend to the “little guy,” he cited a long list of cases where he ruled in favor of the “little guy.” When asked if he is an originalist (one who interprets the Constitution’s meaning as stable from the time of enactment), he rejected being labeled and pointed to cases where liberal justices have tried to determine the framer’s intent in interpreting a provision of the U.S. Constitution. More fundamentally, he tried to portray himself as well within the legal mainstream. Finally, he noted that he rarely dissents – but when he has, he has done so “in about equal numbers from judges appointed by presidents from the two parties.”

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. She is a regular contributor to CitiesSpeak.

What’s Next for the Second Blocked Travel Ban?

Judges in Hawaii and Maryland recently prevented parts of the second executive order on refugees from going into effect temporarily, citing likely violations of the U.S. Constitution’s Establishment Clause.

President Trump’s second travel ban prohibits refugees and other visitors from predominantly Muslim countries from entering the United States. (Getty Images)

On March 16, 2017, President Donald Trump’s second travel ban executive order was scheduled to be enacted. Within hours of each other, federal judges from Hawaii and Maryland issued decisions temporarily preventing portions of it from going into effect nationwide. Both decisions conclude that the executive order likely violates the Establishment Clause because it was intended to prevent people from for entering the United States on the basis of religion.

The State of Hawaii (and an American citizen of Egyptian descent with a Syrian mother-in-law lacking a visa) brought the case decided by the court in Hawaii.

The president’s first executive order prevented people from seven predominately Muslim countries from entering the United States for 90 days. The Ninth Circuit temporarily struck it down, concluding it likely violated the due process rights of lawful permanent residents, non-immigrant visa holders, and refugees.

The second executive order prevents people from six predominately Muslim countries from entering the United States for 90 days, but only applies to new visa applicants and allows for case-by-case waivers.

The Establishment Clause prevents the government from preferring one religion over another. To that end, laws must have a secular purpose.

The Hawaii judge reasoned that “a reasonable, objective observer enlightened by the specific historical context, contemporaneous public statements, and specific sequences of events leading to its issuance” would conclude the executive order was intended to disfavor Muslims despite its “stated, religiously-neutral purpose.” More specifically, the court relied on numerous statements made by the president himself indicating he wanted a “Muslim ban.”

The Maryland judge’s analysis of the purpose of the travel ban is very similar to that of the Hawaii judge, but the Maryland judge spends more time dismissing the notion that national security concerns were the real reason for the travel ban. “The fact that the White House took the highly irregular step of first introducing the travel ban without receiving the input and judgment of the relevant national security agencies strongly suggests that the religious purpose was primary, and the national security purpose, even if legitimate, is a secondary post hoc rationale.”

President Trump has three options at this point. First, he can appeal both rulings to the Ninth and Fourth Circuits, respectively, like he did when a federal district court judge in the state of Washington struck down the first travel ban. Three-judge panels will decide whether to affirm the lower court decisions. Second, he can go back to the drawing board again and issue a third travel ban. Finally, he can abandon altogether the adoption of a travel ban.

Initial comments made by the president indicate he would like to take this travel ban (as well as the first one) all the way to the Supreme Court.

On March 15, 2017, the full Ninth Circuit issued an opinion stating that it would not rehear the case regarding the first travel ban. Interestingly, five Ninth Circuit judges dissented from this decision, concluding that the first travel ban was “well within the powers of the presidency.”

If the president appeals the Hawaii ruling to the Ninth Circuit, it is possible that the three-judge panel could include between zero and three of these dissenting judges.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. She is a regular contributor to CitiesSpeak.

Supreme Court Will Not Decide Transgender Bathroom Case

The case revolves around the interpretation of a federal regulation that bans discrimination “on the basis of sex” in schools that receive federal money. The legal question is whether it can also ban discrimination based on gender identity.

The Trump Administration’s reversal of a rule on transgender students’ rights has effectively removed the case from the Court’s docket. (Getty Images)

The Supreme Court will not decide – at least not this term – whether transgender students have a right to use the bathroom consistent with their gender identity, due to changes in position on this issue from the Obama Administration to the Trump Administration.

Title IX prohibits school districts that receive federal funds from discriminating “on the basis of sex.” A Title IX regulation states that, if school districts maintain separate bathrooms (locker rooms, showers, etc.) “on the basis of sex,” they must provide comparable facilities for the other sex.

In a 2015 letter, the Department of Education (DOE) interpreted the Title IX regulation to mean that, if schools provide for separate boys’ and girls’ bathrooms, transgender students must be allowed to use the bathroom consistent with their gender identity. DOE and the Department of Justice reaffirmed this stance in a May 2016 “Dear Colleague” letter.

On February 22, 2017, DOE issued a “Dear Colleague” letter withdrawing the previous letters. The new “Dear Colleague” letter takes no position on whether the term “sex” in Title IX includes gender identity.

G.G. is transgender. The Gloucester County School Board prevented him from using the boy’s bathroom. He sued the district arguing that is discriminated against him in violation of Title IX.

In November 2016, the Supreme Court agreed to decide two questions in Gloucester County School Board v. G.G. First, should it defer to DOE’s letter interpreting the regulation? Second, putting the letter aside, should the Title IX regulation be interpreted as DOE suggests?

The Fourth Circuit ruled in favor of G.G. The court gave Auer deference to DOE’s letter. Per Auer v. Robbins (1997), a court generally must defer to an agency’s interpretation of its ambiguous regulations. According to the Fourth Circuit, the Title IX regulation is ambiguous because it is “susceptible to more than one plausible reading because it permits both the Board’s reading (determining maleness or femaleness with reference exclusively to genitalia) and the Department’s interpretation (determining maleness or femaleness with reference to gender identity).”

Despite the 2015 and 2016 letters being rescinded, both parties still wanted the Supreme Court to decide this case. As the parties pointed out, the second question – how to interpret the Title IX regulations regardless of DOE’s position – doesn’t depend on the views of either administration.

Nevertheless, the Supreme Court has sent this case back to the Fourth Circuit to rehear it in light of the new “Dear Colleague” letter. That ruling may again to appealed to the Supreme Court.

It seems likely that sooner rather than later, and probably with the benefit of nine Justices, the Supreme Court will again be considering the question of the rights of transgender students.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. She is a regular contributor to CitiesSpeak.

The Trump Administration and Waters of the U.S.

President Donald Trump recently signed an executive order aimed at rolling back the Waters of the U.S. (WOTUS) rule, an Obama-era rule designed to protect the streams and wetlands that form the foundation of the nation’s water resources. What will happen to current WOTUS litigation following the president’s recent executive order?

(Getty Images)

Per the Clean Water Act, “Waters of the United States” (WOTUS) are parcels of land, such as the wetlands pictured above, which are federally regulated by the EPA and the Army Corps of Engineers. (Getty Images)

President Donald Trump’s executive order Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule calls for the “rescinding or revising” of the Waters of the United States (WOTUS) definitional rule published in the summer of 2015. Many state and local governments objected to the broad nature of these regulations, in particular to the expansive definition of ditches and the ambiguous definition of tributaries.

“The EPA so-called Waters of the United States rule is one of the worst examples of federal regulation, and it has truly run amok, and is one of the rules most strongly opposed by farmers, ranchers and agricultural workers all across our land,” said President Trump on Tuesday.

The executive order acknowledges that rewriting the WOTUS definitional regulations will require going through the lengthy and complicated process under the Administrative Procedures Act which the 2015 final regulations endured. This process involves proposing a new rule, receiving and responding to (likely thousands) of comments, and issuing a final rule.

The current WOTUS regulations are subject to complicated litigation. In October 2015, the Sixth Circuit issued a temporary stay of the regulations preventing them from going into effect nationally. In February 2016, the Sixth Circuit ruled that it, rather than a federal district court, has jurisdiction to rule on whether the WOTUS rule exceeded the Clean Water Act.

In January 2017 the Supreme Court agreed to review the Sixth Circuit ruling that an appellate court – not a district court – has jurisdiction to rule on WOTUS. This case, National Association of Manufacturers v. Department of Defense, will not be heard until late 2017, meaning the Supreme Court may not issue an opinion in this case until as late as June 2018.

What will be the fate of all this WOTUS litigation over the current rule in light of the executive order? We don’t know – but the executive order directs the Attorney General to “inform any court of such review and take such measures as he deems appropriate concerning any such litigation pending the completion of further administrative proceedings related to the rule.”

The Attorney General may ask the Sixth Circuit to voluntarily vacate its decision temporarily staying the regulations, given that the new administration intends to change them. The Sixth Circuit is more likely to agree to this if none of the parties object. A number of states and environmental groups have intervened in support of the current WOTUS regulations and may object.

If the Sixth Circuit vacates the stay, the practical effect is that the current regulations would no longer be valid. Vacatur of the Sixth Circuit stay also would likely render moot the Supreme Court challenge on jurisdiction. If the Sixth Circuit refuses (or isn’t asked) to vacate the Sixth Circuit decision regarding the stay, the Supreme Court jurisdiction litigation is likely to proceed indefinitely.

Given that defining WOTUS has been so difficult and contentious, almost no matter what new definition is proposed it too will be subject to litigation.

The executive order instructs that Justice Antonin Scalia’s decision in Rapanos v. United States be “considered” in defining the term “navigable waters.” Rapanos is a 4-1-4 decision. Justice Scalia wrote the plurality opinion, defining this term more narrowly than Justice Kennedy’s solo concurring opinion. The Sixth Circuit considered Justice Anthony Kennedy’s opinion controlling. If the new definition of WOTUS relies on Justice Scalia’s opinion, it will almost certainly be challenged on this ground, along with many others.

Interested in more WOTUS news? Lisa Soronen contributed a previous CitiesSpeak blog post about the jurisdictional determinations issued by the Army Corps of Engineers under the Clean Water Act.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. She is a regular contributor to CitiesSpeak.

What’s Next for the Supreme Court’s Transgender Bathroom Case?

The case revolves around the interpretation of a federal regulation that bans discrimination “on the basis of sex” in schools that receive federal money. The legal question is whether it can also ban discrimination based on gender identity.

hear oral argument in the case next month, if not before. (Getty Images)

Although the Supreme Court will hear oral arguments in the case next month, if not before, the Trump administration’s reversal of a rule on transgender students’ rights could potentially remove the case from the Court’s docket. (Getty Images)

The fate of the most controversial case the Supreme Court has agreed to decide this term is uncertain now that the Department of Education (DOE) has issued a “Dear Colleague” letter withdrawing a previous letter requiring school districts to allow transgender students to use the bathroom consistent with their gender identity.

Title IX prohibits school districts that receive federal funds from discriminating “on the basis of sex.” A Title IX regulation states that, if school districts maintain separate bathrooms (locker rooms, showers, etc.) “on the basis of sex,” they must provide comparable facilities for the other sex. In a 2015 letter DOE interpreted the Title IX regulation to mean that, if schools provide for separate boys’ and girls’ bathrooms, transgender students must be allowed to use the bathroom consistent with their gender identity. The new “Dear Colleague” letter takes no position on whether the term “sex” in Title IX includes gender identity.

The Supreme Court has agreed to decide two questions in Gloucester County School Board v. G.G.  First, should it defer to DOE’s letter interpreting the regulation? Second, putting the letter aside, should the Title IX regulation be interpreted as DOE suggests?

G.G. is biologically female but identifies as a male. The Gloucester County School Board prevented him from using the boy’s bathroom. He sued the district, arguing that it discriminated against him in violation of Title IX. The Fourth Circuit Court ruled in favor of G.G, giving Auer deference to DOE’s letter.

Per Auer v. Robbins (1997), a court generally must defer to an agency’s interpretation of its ambiguous regulations. According to the Fourth Circuit, the Title IX regulation is ambiguous because it is “susceptible to more than one plausible reading because it permits both the Board’s reading (determining maleness or femaleness with reference exclusively to genitalia) and the Department’s interpretation (determining maleness or femaleness with reference to gender identity).”

Despite the 2015 letter being rescinded, both parties still want the Supreme Court to decide this case. On SCOTUSblog, Amy Howe describes some of the Court’s options: “Among other things, they could send the case back to the Fourth Circuit for it to weigh in more fully on the Title IX question in light of the government’s changed position, or they could forge ahead and rule on that question themselves. At the very least, we should know more about the justices’ inclinations when they hear oral arguments in the case next month, if not before.”

Putting aside the factual context of this case, state and local governments, acting through the State and Local Legal Center, have criticized Auer deference in Supreme Court amicus briefs. The Gloucester County School Board asked the Supreme Court to decide whether to overturn Auer, but the Court refused to consider this question.

Two states – Tennessee and Arkansas – have passed laws that preempt local non-discrimination provisions.

“Preemption efforts – where state law nullifies a municipal ordinance or authority – lead to a loss of local control and can have far-reaching economic and social impacts in our communities,” said National League of Cities (NLC) CEO and Executive Director Clarence E. Anthony. NLC’s latest report, City Rights in an Era of Preemption, examines the prevalence of state preemption across the country.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. She is a regular contributor to CitiesSpeak.