ON-Lion Letter
"For going on eight years America has been witness to a president unmoored to the constitution," begins a July article in National Review Online by Jake Curtis.  President Barack "Obama promised to use the 'pen and a phone' to bypass Congress.  Less well-known is how often his 'pen and phone' have been used not only to bypass Congress but also to impose federal mandates on the states, trampling the Constitution's separation of powers in every sense."

Curtis is an associate counsel at the Wisconsin Institute for Law & Liberty's Center for Competitive Federalism, which is substantially supported by The Lynde and Harry Bradley Foundation in Milwaukee.

"Our constitutional foundation rests on the principle of both horizontal and vertical separation of powers," continues Curtis in "The Transgen Tip of the Iceberg."  As Bradley Prize recipient "Richard Epstein and Mario Loyola have noted, the Constitution crafted by the Founders 'divided power both horizontally (among the legislative, executive, and judicial branches) and vertically (between the federal and state governments).'  Obama has run roughshod over all of it, and the transgender-school-bathroom order is only the latest example. 

"President Obama's executive federalism is novel in that it undermines the basic constitutional procedures envisioned by the Founders," according to Curtis.  "Under Obama's rules of federal engagement, federal bureaucrats issue dictates from Washington, D.C., with no input from elected members of Congress.  By way of 'guidance letters' issued by federal agencies, the federal government has sharpened two very destructive strategies against local units of governments.  Federal agencies will either threaten federal funding, thereby coercing local units of government to accept federal mandates, or require local units of government to essentially serve as administrative arms of the federal government, thereby commandeering these otherwise local units.  In the most egregious examples, the federal government employs both techniques on unsuspecting local bureaucrats. 

"Recently," he writes, "the Department of Education and the Department of Justice issued to schools nationwide a joint 'Dear Colleague' letter on transgender accommodations.  But this letter is simply the most recent in a long line of guidance letters issued to local units of government.  If Americans thought they controlled school policy by electing school boards, they'd best think again.  In the most recent Dear Colleague letter, federal bureaucrats have set their sights on our nation's children and their most private of gathering spaces:  bathrooms, locker rooms, and showers.

"The nation it at a crossroads," Curtis concludes.  "We can pivot back to a constitutional form of government originally envisioned by the Framers, one that rests upon a separation of powers between the executive and legislative branches and that requires a competitive form of federalism between federal and state governments.  Failing that, we can continue our devolution into a form of government in which the president rules by decree."
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