North Carolina Officials File Complaints for Declaratory Judgment (Bathroom Law)

Source: National Review | May 9, 2016 | Ed Whelan

This morning, North Carolina governor Pat McCrory and state secretary of public safety Frank Perry filed a complaint for declaratory judgment against the Obama administration’s baseless and ill-advised efforts to block North Carolina’s implementation of H.B. 2. This afternoon, Phil Berger, the president pro tem of the state senate, and Tim Moore, the speaker of the state house of representative, filed their own (much more extensive) complaint. Both complaints were filed in the same federal court (Eastern District of North Carolina, Western Division) and will presumably be consolidated. The remainder of this post (including below the fold) is the introduction from the Berger/Moore complaint:

1. When people find themselves in the intimate settings of public bathrooms, locker rooms, or showers, they expect to encounter only other people of the same biological sex. Until very recently, that simple expectation of bodily privacy would have been taken for granted. Yet when North Carolina sought to protect that expectation in law—by enacting the “Public Facilities Privacy and Security Act” (the “Act”), commonly known as HB2—a torrent of vicious criticism was unleashed against the State, its officials, and its citizens. The abuse has now reached its apex with the unprecedented threats by the United States Department of Justice (“Department”), the defendant here. Last week, the Department sent letters to North Carolina public officials and agencies informing them that, by complying with the Act, they were engaging in a “pattern or practice” of discrimination in violation of three federal civil rights laws. They were bluntly ordered to repudiate the Act within five calendar days—that is, by today—or else face enforcement actions that would drastically impact North Carolina, including the potentially catastrophic elimination of more than two billion dollars in federal funding. Instead of meekly complying, plaintiffs—the leaders of both chambers of the North Carolina General Assembly—have filed this declaratory judgment action.


11. In sum, declaratory relief is urgently needed in this case. It is needed to protect the sovereignty of North Carolina’s people to set public policy on sensitive and controversial matters of bodily privacy and security. It is needed to shield North Carolina from an open-ended threat of a potentially catastrophic loss of federal funding based on nothing more than the Department’s novel and untested misreading of longstanding federal requirements. And it is needed to clarify that federal officials abuse their authority—and violate the Constitution—when they peremptorily order a sovereign State to abandon properly enacted legislation, as if North Carolina were nothing more than a tributary of the federal government.

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