“There is no decree clause to the Constitution.”
Those were the words of former presidential candidate Sen. Ted Cruz last Saturday at the Texas Republican Convention.
Cruz’s comments came on the heels of President Obama directing schools to allow transgender access to the bathroom that matches the child’s “gender identity.” The Obama administration, citing Title IX, said that schools need to observe this practice or face possible loss of federal funding.
Nowhere in Article II of the U.S. Constitution, which lists the powers of the executive branch, does it state that any president has to the power to issue a directive without the consent of Congress (although, some presidents probably chose to circumvent the Constitution because it does not name them specifically).
Cruz took the president to task, saying he believes that Obama is acting like the “bathroom police.”
It is not really clear why this issue has become such a divisive topic, considering that only 0.3 percent of the population identifies as transgender, according to the UCLA School of Law.
Why did Obama wait until an election year to address this topic, espiecially given the number transgender people has not seen a dramatic rise during his term? It could be possible that the president is only trying to get as many things on his ideological list done before his time in office is complete.
Whatever the reason, Obama does not have the authority to issue sweeping declarations like the bathroom policy at schools without the consent of Congress.
Here is what the president does have the power to do, per the Constitution:
- SECTION 2 of Article II:
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.
- Section 3 of Article II:
He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.
- Section 4 of Article II:
The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
Did you see any indication in any section suggesting the president is allowed to dictate, decree or make sweeping declarations? I don't either, but maybe we’re all reading it wrong.
To see the clip from Cruz’s speech at the Texas Republican Convention, watch below: