RALEIGH, N.C. — As the Nov. 14 federal trial that will decide the fate of House Bill 2 (HB2) creeps slowly closer, it has become increasingly difficult to find an objective source that will fairly represent both sides of the argument. It seems that everyone in North Carolina, and very many out-of-state corporations, politicians and citizens, all have their own opinions on HB2. Although qnotes clearly has a certain slant, this writer will attempt to demonstrate a fair summary of both conservative and progressive arguments going into the trial.
A recent press release from the National Center for Public Policy Research (NCPPR) sheds some light on the conservative, pro-HB2 side of the debate. NCPPR argues that the Department of Justice (DOJ) attempting to overturn the law constitutes overreach of the executive branch. We’ve all heard the term “overreach” bandied about, but the center’s rhetoric is particularly persuasive because it speaks to the very nature of the United States government.
As we all learned in civics class, the government has three distinct bodies: legislative, judicial and executive. The NCPPR and other conservative critics of the DOJ’s lawsuit claim that, as a part of the executive branch, the Obama administration is attempting to rewrite the meaning of “sex discrimination” without consent of the legislative branch, which is supposed to be responsible for writing the law.
“It is important to continue the U.S. Constitution’s separation of powers doctrine, whereby the legislative branch passes laws and the executive branch enforces them,” the center’s press release argues.
Any objective analysis of this argument must acknowledge that it is indeed the job of the legislature, and not the executive branch, to write the law; but this is not the end of the argument.
What the NCPPR does not acknowledge is the third branch of the government — the judicial. This is the branch that truly holds the power in this case, as the burden falls upon a federal judge to hear and resolve arguments from the DOJ and proponents of HB2. So, if the judge were to rule in favor of the DOJ, it would be the judicial and executive branches outvoting the legislative.
That would certainly not be unprecedented in history. How many court cases over our country’s 240-year history have influenced the law of the nation and even led to changes in the law or how it is interpreted?
U.S. v. Windsor. Texas v. Johnson. Roe v. Wade. Brown v. Board of Education. These are just a few.
Although the center’s and other conservatives’ arguments about executive overreach have merit, the very existence of a federal court case ensures that overreach is impossible. No matter how badly the executive administration hopes to change the law, it is ultimately up to the judicial branch to determine the future of HB2.
The federal judge who is to decide the case, Thomas Schroeder, has a conservative history that includes upholding N.C.’s strict voter ID law (later overturned). If anything, it is LGBT advocates who should be nervous about the upcoming trial. Whatever the results, readers may rest easy knowing that qnotes will do its best to offer comprehensive coverage of HB2 developments.