Trump’s HHS Finds Maine Violated Title IX by Allowing Males on Female Sports Teams
President Donald Trump’s Department of Health and Human Services (HHS) on Monday announced that Maine violated federal civil rights law by allowing males to play on female sports teams.
The department’s Office for Civil Rights (OCR) specifically found that the Maine Department of Education, the Maine Principals’ Association, and Greely High School have each violated Title IX of the Education Amendments of 1972, which prohibits discrimination based on sex in education programs and activities receiving federal funding.
The OCR launched its compliance review after a transgender-identifying boy claimed the victory in the Maine Class B championship for the Greely High School girls’ track and field team in February. The high school boy was allowed to perform on the girls’ team, despite Trump’s executive order barring males from participating on female sports teams. Following Trump’s order, Maine officials publicly said they would not comply with the order, siding with transgender-identifying males over women and girls.
“The Maine Department of Education may not shirk its obligations under Federal law by ceding control of its extracurricular activities, programs, and services to the Maine Principals’ Association,” said Anthony Archeval, Acting Director of the Office for Civil Rights at HHS. “We hope the Maine Department of Education, the Maine Principals’ Association, and Greely High School will work with us to come to an agreement that restores fairness in women’s sports.”
HHS said the OCR’s determination letter sent to the three entities offers them the opportunity to voluntarily commit within ten days to comply with Title IX “or risk referral to the U.S. Department of Justice for appropriate action.”
President Trump’s executive order on “Keeping Men out of Women’s Sports” was created to protect female student athletes from having “to compete with or against or having to appear unclothed before males.” The order also mandates each federal department to “review grants to education programs and, where appropriate, rescind funding to programs that fail to comply with the policy established in this order,” which protects women “as a matter of safety, fairness, dignity, and truth.”
HHS’s findings come after the Department of Education launched its own investigation into Maine following the teen boy’s win at the high school girls’ pole vault competition.
The Trump administration last week also ordered the U.S. Department of Agriculture (USDA) to pause federal funds to the University of Maine System (UMS) over the state’s refusal to protect women’s sports.
More at:
Supreme Court Path for President Trump on Birthright Citizenship
President Donald Trump’s executive order banning birthright citizenship for illegal aliens, tied to the invasion on the border, tees up a major Supreme Court case that could become a historic Trump win that fixes a growing, decades-long problem.
Several of the executive orders (EOs) and presidential actions on Inauguration Day — January 20 — dealt with immigration and the southern border. Trump declared that what is happening on the border is an invasion of the United States and issued a proclamation banning the entry of those illegal aliens into the country.
And in EO 14160 — dealing with birthright citizenship — President Trump also ordered his government not to issue citizenship documents to children of women who are illegal aliens or in the U.S. on a temporary visa and whose fathers are not U.S. citizens or lawful permanent residents (LPRs, also called green card holders).
Democrats and their allies wasted no time filing at least ten federal lawsuits challenging the constitutionality of that EO. One challenge was brought by eighteen Democrat state attorneys general in Massachusetts. Another four states filed in the state of Washington.
These leftists claim that everyone born in the United States is automatically a U.S. citizen. But that is not the law, and it has never been the law.
All of these lawsuits assert the language of the Citizenship Clause of Section 1 of the Fourteenth Amendment to the U.S. Constitution, which provides, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
This all started with possibly the worst Supreme Court case in American history, Dred Scott v. Sanford. A Black man who had been a slave but then taken to a free state sued in federal court seeking a court judgment that he would remain a free man. In that 1857 case, the court held that because a Black person was not a U.S. citizen, no federal court even had jurisdiction to decide his case.
As the Civil War was ending, Congress proposed the Thirteenth Amendment, which ended slavery. That amendment included Section 2, empowering Congress to pass legislation to fully enforce the end to slavery.
As soon as the Thirteenth Amendment was ratified by the states in 1866, Congress passed the Civil Rights Act of 1866, claiming the authority of Section 2. It included a clause on federal citizenship, which provided, “All persons born or naturalized in the United States, and not subject to any foreign power, are citizens of the United States and of the State wherein they reside.”
But some leading legal minds in Congress at the time, such as Congressman John Bingham (R-OH), believed that citizenship was not covered by Section 2. He and others believed that another constitutional amendment was needed to cover issues like citizenship, due process, and equal protection of the laws. They took language from the Civil Rights Act, repackaged it as another amendment, and in 1868, the states ratified that proposal as the Fourteenth Amendment to the Constitution.
When Congress was repackaging the citizenship provision, they changed “not subject to any foreign power” to “and subject to the jurisdiction thereof.”
Explaining the meaning of these words, Sen. Jacob Howard (R-MI) explained that this reference to what some called “complete jurisdiction” meant:
… that the word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.
Sen. Lyman Trumbull (R-IL) added that the phrase excluded anyone who owed “partial allegiance” to “some other Government” outside the United States. The list of other members making similar statements goes on, such as Congressman John Broomall (R-PA) explaining, “Civilized man must of necessity be a citizen somewhere.” That was not possible for a Black man under Dred Scott, but nonetheless that man “must owe allegiance to some Government.”
The Citizenship Clause was thus written into the Constitution to overrule Dred Scott. It was written to guarantee that Black people born and raised in America would be recognized as fully human and had a right to call this nation their home, and that federal courts would be open to them to protect their rights.
The legal debate is therefore over the six words, “and subject to the jurisdiction thereof.” Federal law has always recognized that some persons are excluded by that phrase. The children of foreign ambassadors, foreign dignitaries, and foreign soldiers are not U.S. citizens by birth.
The legal question is who else falls within that exclusion, and President Trump is saying that children of illegal aliens fit into that category. A pair of Supreme Court cases set the bookend for that discussion.
The first was Elk v. Wilkins, where the Supreme Court held in 1884 that a man born on an Indian reservation was not guaranteed citizenship by the Fourteenth Amendment because Indian nations are quasi-sovereign, and therefore Elk was not fully subject to the political jurisdiction of the United States.
Elk discussed much of the history and quotations listed above, and went on to reason that Indians not covered by the Citizenship Clause are on the same footing as “the children of foreign subjects,” who are in the United States on a temporary basis, and that both groups have the same constitutional citizenship rights as “the children of ambassadors” – meaning that the Constitution did not promise them citizenship at all.
The second case is U.S. v. Wong Kim Ark, where the Supreme Court held in 1898 that the Constitution did secure citizenship for the child of two Chinese nationals living in California. Their son, born in America in 1873, had visited China and was denied reentry because he was not treated as a citizen, until the Supreme Court declared that he was.
While Wong Kim Ark might seem problematic, the court there reasoned that the parents had renounced all ties and allegiance to China and were living permanently in the United States, which is important because an illegal alien has no permanent status in this country. And they were here lawfully. Immigrants from China were not able to become American citizens at that time because of the (racist) Chinese Exclusion Act, so these parents had become as close to citizens as the law allowed, and they lived here legally and permanently when their son was born in the U.S.
There was also broader language in the court’s opinion that would cover the children of other noncitizens as well. But that language is what courts call “dicta” instead of the “holding” of the court. That term refers to words in the court’s opinion that are not legal reasoning that was necessary to answer the question before the court. Dicta is not binding precedent entitled to stare decisis protection as settled precedent that would constrain the Supreme Court in the future.
But lower courts usually treat dicta from the Supreme Court as binding precedent, so the Justice Department’s strategy will likely be to get these challenges to the Supreme Court as quickly as possible, especially as liberal judges on lower courts will readily cite Wong Kim Ark to rule against EO 14160.
In some regards, these cases are similar to President Trump’s first term policy restricting travel from countries with terrorist vetting problems, which ran into obstacles in the lower courts in 2017 but ultimately prevailed in the Supreme Court in 2018 in Trump v. Hawaii.
As noted above, a key aspect of President Trump’s EO 14160 is that it is coupled with another EO declaring a national emergency at the southern border. He also issued a presidential proclamation about how allowing entry of foreign nationals illegally crossing the southern border is contrary to the national interest, invoking authority Congress conferred to any president under 8 U.S.C. § 1142(f) to restrict or deny entry to any class of noncitizens.
The president is also invoking his inherent authority under Article II of the Constitution to supervise who can enter the country, as the Supreme Court recognized in U.S. ex rel. Knauff v. Shaughnessy, and the federal government’s Article IV’s obligation to protect the states from invasion. By declaring an invasion, President Trump is bringing additional legal authorities to bear.
So to succeed in court, the Trump administration needs to show how invaders are the constitutional equivalent of foreign soldiers. Official U.S. policy is that any person crossing the Mexican border illegally is part of an invasion and is defying a lawful presidential proclamation barring their entry into this nation.
It makes no difference that many illegal aliens are not committing any violent acts. A foreign soldier can serve in that foreign military as a cook, or a military construction worker, or a dentist. His or her children born on U.S. soil would not be entitled to U.S. citizenship as a constitutional right, and it makes no difference that the parents were carrying weapons.
That reason could also be extended to China as a geopolitical adversary of the United States. Although it is one step further removed from a soldier, a person entering this country illegally from a foreign power that is taking a hostile posture against this nation can still be compared to foreign soldiers for purposes of citizenship.
The numbers at stake are staggering. There are almost 300,000 children born each year in this country who, under EO 14160, should not be recognized as citizens. These so-called “anchor babies” lead to everything from illegal border crossings to “birth tourism” seeking to game America’s immigration system.
There is more than one way President Trump can win this legal fight. One is that the Supreme Court could rule that the president is able to issue this EO consistent with current statutory language, combining both immigration law and the other constitutional and statutory provisions listed above. The justices can brush aside dicta in Wong Kim Ark that could otherwise be cited by the other side.
But if there are not five justices on the court holding to that position, the other route is that some justices might say that Congress could fix this by tweaking the language in the relevant statutory section, 8 U.S.C. § 1401. Polling suggest that a solid majority of Americans would support such a commonsense clarification of federal law to make explicit that words that were designed to overrule Dred Scott do not create a loophole for illegal aliens. A president with the wind to his back should hope to pass such a statutory fix.
Birthright citizenship is a major challenge facing America today, and President Trump is rightly claiming a mandate to do something about it with his series of EOs and proclamations. Whether through an outright legal victory at the Supreme Court or the combination of legal victories and a political victory in a Republican-controlled Congress, there thus appears to be a clear path for the president to deliver on that promise.
More at:
Three Crucial Words for Our Constitutional Republic
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” — Article VI, Clause 2, US Constitution
Recently there have been many pundits and incompetents who have been invoking Article VI, Section 2 of the United States Constitution, known as the Supremacy Clause. No, progressive socialist leftists, it has nothing to do with white supremacy or racism. Please share that with Claudine Gay, lest she use the Supremacy Clause to further her insidious victimization narrative.
These same leftists, Marxists, seem to use this clause to impose their ideological agenda when they have control of the federal government. However, there are three very crucial words within the Supremacy Clause that leftists, and many others, seem to selectively, and intentionally, forget: “in Pursuance thereof.”
We must be reminded that the Constitution of the United States of America is a restraining document on the powers of the federal government. As a matter fact, the Founding Fathers clearly articulated the limits of the federal government in the last constitutional amendment of our individual Bill of Rights, the tenth. It states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
It is imperative to understand that when the writers of the Constitution — James Madison, John Jay, and Alexander Hamilton — wrote the Constitution, their use of “the United States” refers to the entity of the federal government.
In other words, that which is not specifically enumerated as a power of the federal government is reserved to the States, and the individual people, citizens. I am still searching for where the federal government has an enumerated power to decide who gets married, and no, that has nothing to do with the 14th Amendment “equal protection under the law” clause. That was intended for recently freed slaves who were just made citizens.
In keeping with the same understanding, if the federal government is not “in Pursuance thereof” our rule of law, the Constitution, it is not supreme over the States.
Let’s look at the issue of illegal immigration, an invasion of millions. The Constitution in Article IV, Section 4, known as the Guarantee Clause, clearly charges the federal government with the duty to protect every State in the Union from invasion. The Biden administration is clearly in violation of the Guarantee Clause, and please, spare me the weak excuse about folks escaping climate change. Hundreds of thousands of single military-age males ain’t running from the weather. With that being said, it is disingenuous for the Biden administration to assert the Supremacy Clause against the State of Texas which seeks to protect itself in light of the federal government not acting “in Pursuance thereof” the Constitution. As well, Article I, Section 10, Clause 3 of the Constitution specifies exactly what States have the enumerated power to do when actually invaded, facing imminent danger, and they may take action without “admit of delay.”
Now, as evidence of this equal application of the rule of law, the Governor of Texas is empowered in the Texas Constitution, Article IV, Section 7 in his duty as Commander of the Texas Military Department to “repel invasions.” It does not say anything about “busing invasions.” To confused leftist mayors, declaring their cities, or leftist governors declaring their states, as “sanctuaries,” your actions are not “in Pursuance thereof” the laws of this sovereign Constitutional Republic.
Governor Pritzker of Illinois seeks to allow illegal immigrants to become law enforcement officers. Leftist Governor Shapiro of Pennsylvania wants to allow illegals to get drivers licenses and picture IDs. New York Governor Hochul wants illegals to vote in elections. And the well-coiffed Governor of California is telling law-abiding citizens that they must pay for free healthcare for illegal immigrants. To top it all off, delusional Illinois Senator Dick Durbin wants to enlist illegal immigrants into our US Armed Forces, ya know, since Biden’s policies are decimating our recruiting and retention. Not a single one of these “dead from the neck up” Marxists are taking actions that are “in Pursuance thereof” to our Constitution. States are allowed to enact “constitutional nullification,” and We the People are not bound to obey.
Such is the case we see already, again, in Illinois where they have supposedly “banned” what they call “assault weapons;” semi-automatic rifles they think are scary and do not like. Spoiler alert, the mentally disturbed gender dysphoric school shooter in Iowa was armed with a shotgun and a handgun. Anything used to assault an individual — meaning inflict bodily harm — is an assault weapon: hammer, nail gun (see Equalizer), knife, automobile (see Christmas parade in Wisconsin), fist, foot, or pencil (see John Wick). What the leftists are doing is taking an action that is not “in Pursuance thereof” our Second Amendment right, in our Bill of Rights, in our Constitution.
The future of America is dependent upon us restoring the rule of law in our Constitutional Republic. I have not seen anywhere that government — federal, state, or local — has the enumerated power to shut down private businesses. No emergency suspends the rule of law! It was Benjamin Franklin who told us, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
The three most crucial words for our Constitutional Republic, “in Pursuance thereof,” pertain to the pursuance of individual liberty and the adherence to the rule of law. It is not about replacing constitutional rights with deranged ideological rights, such as telling parents they might lose custody of their children if their kids are not allowed to mutilate their bodies. Sadly, in America, we have such a dearth of principled men and women. Replaced by those motivated by self, and politicians fueled by special interests, enabled by useful idiots and mindless lemmings, we find ourselves at this critical moment. It is time American citizens, not insidious ideologues, start asking themselves, and those seeking to be our representatives, is what you are doing, and your policies “in Pursuance thereof” in advancing my individual rights, freedoms, and liberties? Are these politicians, not statesmen, in pursuit of their own advancement and enrichment to the detriment of our own?
The Constitution of the United States of America is not a very long document, just like the Declaration of Independence. You could certainly read both in less time than it would take you to read the confused rhetoric spewed forth by Ibram X. Kendi or Nikole Hannah-Jones, which is only “in Pursuance thereof” appeasing the “stuck on stupid.”
The challenge for America in 2024 is for more citizens to live a life “in Pursuance thereof” restoring our Constitutional Republic, as opposed to those living in pursuance of a fundamental transformation of our America.
Steadfast and Loyal.
More at:
Hastings College of Law Bars the “Heckler’s Veto” in Defense of Free Speech
For years, some of us have called upon schools to impose stricter rules against students or faculty disrupting classes or events by shouting down speakers or preventing them from being heard. While some law professors and legal sites have supported such cancel tactics, the University of California Hastings College of the Law has joined those schools in barring the use of what is loosely called the “heckler’s veto.” It is now routine for protesters to prevent others from hearing opposing views and there are often allegations that some schools quietly allow the use of the heckler’s veto. The new Event Policy prohibits
“forms of protest that substantially disrupt an in-person or virtual event in a way that has the effect of silencing a speaker,” but still recognizes and protects peaceful protest such as banner holding, counter events, and engaging in question and answer periods as part of the “essential right to protest.”
Under this rule, Administrators may now hold violators “accountable for violating the UC Hastings Code of Student Conduct and Discipline.” We have seen convocations and other important events disrupted by such protesters. We recently discussed how Cornell is pledging to punish students who prevented conservative writer Ann Coulter from speaking.
We have previously discussed the worrisome signs of a rising generation of censors in the country as leaders and writers embrace censorship and blacklisting. The latest chilling poll was released by 2021 College Free Speech Rankings after questioning a huge body of 37,000 students at 159 top-ranked U.S. colleges and universities. It found that sixty-six percent of college students think shouting down a speaker to stop them from speaking is a legitimate form of free speech. Another 23 percent believe violence can be used to cancel a speech. That is roughly one out of four supporting violence.
We discussed this issue with regard to a lawsuit against SUNY. It is also discussed in my recent law review article, Jonathan Turley, Harm and Hegemony: The Decline of Free Speech in the United States, Harvard Journal of Law and Public Policy. We have seen how in universities (including state schools) this can turn into a type of “heckler’s veto” where speeches are cancelled in advance or terminated suddenly due to the disruption of protesters.
This has been an issue of contention with some academics who believe that free speech includes the right to silence others. Berkeley has been the focus of much concern over the use of a heckler’s veto on our campuses as violent protesters have succeeded in silencing speakers, including a speaker from the ACLU discussing free speech. Both students and some faculty have maintained the position that they have a right to silence those with whom they disagree and even student newspapers have declared opposing speech to be outside of the protections of free speech. At another University of California campus, professors actually rallied around a professor who physically assaulted pro-life advocates and tore down their display.
In the meantime, academics and deans have said that there is no free speech protection for offensive or “disingenuous” speech. CUNY Law Dean Mary Lu Bilek showed how far this trend has gone. When conservative law professor Josh Blackman was stopped from speaking about “the importance of free speech,” Bilek insisted that disrupting the speech on free speech was free speech. (Bilek later cancelled herself and resigned after she made a single analogy to acting like a “slaveholder” as a self-criticism for failing to achieve equity and reparations for black faculty and students).
A few years ago, I debated NYU Professor Jeremy Waldron who is a leading voice for speech codes. Waldron insisted that shutting down speakers through heckling is a form of free speech. I disagree. It is the antithesis of free speech and the failure of schools to protect the exercise of free speech is the antithesis of higher education. In most schools, people are not allowed to disrupt events. They are escorted out of such events and told that they can protest outside of the events since others have a right to listen to opposing views. These disruptions, however, are often planned to continually interrupt speakers until the school authorities step in to cancel the event.
Hastings has taken an important stand against these disruptive cancel campaigns. It must now carry out its pledge to protect free speech by holding students accountable when they seek to prevent others from speaking or being heard on campus. Of course, you must also invite speakers who offer alternative or dissenting views, which has become increasingly rare at law school.
More at: Jonathanturley.org
