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Governors in Too Deep Over LGBT Potty Laws

The Huffington Post The Huffington Post 31/03/2016 Amy Dardashtian
NORTH CAROLINA © Getty Images NORTH CAROLINA

Was Robin Hood a villain or a hero? Some say a heroic outlaw. Yet, the heroism of his crimes didn't mitigate their criminality. The same is true of any vigilante justice cloaked in a robe of morality. Even more so when state leaders try to take the law into their own hands. It's called "abuse of power."
Our laws punish abuse of power when money is involved. Money laundered, money extorted, bribery, chicanery, swindlers left and right. Money makes headlines, but take money out of the picture and you'll see politicians trying to stretch their powers under the guise of legal authority, day in and day out; power mongering to further their own legislative agendas. Most of the time they get away with it by fashioning bogus legal justifications that no one questions, because it's better to avoid getting stuck knee-deep in a quagmire of legalese. But often times those justifications, are just that -- legal jargon with no legitimate grounding in the law.
For example, Governors and Mayors across the country are issuing executive orders banning non-essential, government-funded travel to North Carolina. A growing number of states including Vermont, Washington and New York join cities like San Francisco, Portland and Seattle in boycott. The move is retribution for a law preventing transgender people from choosing their preferred restrooms, among other provisions. This is tantamount to state-choreographed sanctions against North Carolina. File that under a nobly garbed abuse of power.
I am not addressing the morality of the motivation here. There is clearly a strong tidal wave of backlash, and conversely a less publicized subset of support for the law. Let the debate fester. All I am saying is that travel bans are not procedurally allowed under the law for this purpose. It's analogous to a harsh interrogation that yields a confession from a guilty man who hasn't been read his Miranda rights. Even if he committed the crime, the confession, the goldmine of guilt, becomes inadmissible. So too here. Even if New York and other states are decrying the discriminatory tenets of North Carolina's latest legislation, the states simply can't embargo their counterparts into submission, and certainly not through the use of an executive order.
The executive order is not a power explicitly granted by the Constitution. It is a necessary power for leaders to "faithfully execute the laws." Courts have reasoned that there will be times when the President must act unilaterally to enforce Congress's laws, hence the executive order was born for this purpose. Similarly, state leaders may use executive orders to enforce congressionally authored laws within the state, or in times of emergency to protect the interests of the people. Nowhere does the federal or any of the state constitutions or laws grant the power to a politician to use the state's economic activities as a weapon to influence another state's policies.
Look below the surface at what is happening. State politicians are using executive orders to impose economic sanctions on another state to coerce it (North Carolina) to conform its civil rights/LGBT policies. It is shocking there are not more people calling attention to this illegal maneuver.
Governors are proclaiming it is in their states interests to promote equality and act out against discrimination. This may be true, however, they have no power to do so outside of their states. Let's take New York's executive order for example. The Governor justified his travel ban on the basis that New York has an interest in promoting equality as a leader in reforming state laws for the LGBT community. Congrats New York. I'm not undervaluing that achievement. But, New York's legislative power is solely confined to New York. The State is not a congressional body with a police power over the entire country's legislation.
Let's look no further than the highest court in the land for its binding wisdom on this issue. The Supreme Court has ruled on state-issued sanctions in the past. Numerous times, states have banned business and travel to foreign countries in protest of human rights abuses. SCOTUS has consistently overturned those bans as unconstitutional, holding that the States may not interfere with the federal government's powers over foreign affairs or interstate commerce or anything else for that matter.
New York's Governor claims New York doesn't want to indirectly fund anti-discrimination laws by allowing travel to North Carolina. But inversely, he's forcing New York to burden our whole interstate commerce system by banning travel based on one law. This is a violation of the dormant commerce clause, which stands for the following rule: Congress has sole power over interstate commerce therefore states cannot enact legislation that burdens said commerce.
If North Carolina passed a discriminatory law then the people of North Carolina need to challenge that law as unconstitutional. There is already a lawsuit underway to do exactly that. A judge will either force North Carolina to rewrite the law or allow it to enforce the law. However, banning travel to North Carolina based on out of state policy grounds is wholly outside of the executive authority of state leaders.
A strong democracy requires change through public discourse and legislative action, not unilateral, unlawful, executive policymaking.
This isn't the first time states have used the travel ban tactic in response to anti-gay legislation. The same tactic was employed at the same time last year in the bake me a cake wars. In March 2015, Indiana enacted the Religious Freedom Restoration Act. It gave businesses the legal standing to refuse to serve gay couples a wedding cake. States issued travel bans galore. The multi-state boycott worked and Indiana's leaders reformed the law.
It may work again here too. But, will it be an expeditious solution to a morally reprehensible law? Or, is this a complete subversion of our legal system, flipping the bird at a democracy that relies on the scales of justice to balance power in a power-hungry bureaucracy? No matter where you fall on the issue of transgender people and bathroom preference, a hard reading of the law and the definition of executive power leads to the latter.

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