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On Covid and Texas, Biden Courts a Constitutional Crisis
When Donald Trump was president, we heard a lot about Norms® and Standards.™ Trump was accused of violating this vague collection of unwritten rules, a convenient tactic when they couldn’t prove actual crimes. The good news was that Biden’s election would restore this Beltway-approved system of etiquette. How refreshing.
Eight months into his administration, Biden has folded, spindled, and mutilated our Norms® and Standards,™ even those mandated by the Constitution. Trump was erratic but Biden is openly courting a constitutional crisis.
Pressured by far-left backbencher Cori Bush in August, the White House reinstated an eviction ban already declared illegal by the Supreme Court. Biden knew it was a violation but said: “by the time it gets litigated, it will probably give some additional time.”
As expected, SCOTUS immediately crushed it stating, “if a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.” Just as it says in the Constitution.
On Thursday, Biden made two more obviously unconstitutional moves. First, he ordered hapless Attorney General Merrick Garland to sue the state of Texas over its new abortion law. The administration was furious that the Supreme Court actually followed the law and refused to issue an emergency stay. The DOJ bizarrely claimed that a state exercising its rights will “nullify the Constitution of the United States.”
Later in the day, the President announced a six-point plan to tackle Covid. Called “Path out of the Pandemic,” his executive orders require millions of Americans to get vaccinated or lose their jobs. The groups include federal employees, employees of contractors that do business with the federal government, and workers in hospitals, home health care facilities, and other medical facilities.
Biden also ordered all private employers with 100 employees or more to require weekly Covid testing, and they are required to give employees paid time off to get vaccinated.
“This is not about freedom or personal choice,” Biden said in a national address. “We’ve been patient but our patience is wearing thin and your refusal has cost all of us.” After attacking Americans, the President took on the states. “If these governors won’t help,” Biden said, “I will use my powers as president and get them out of the way.”
Back in December, Biden promised that he would not make vaccines mandatory. Spokeswoman Jen Psaki repeated this in July. But Biden’s promises are irrelevant, as Americans and allies still stranded in Afghanistan have learned. Wanting voters to forget the crisis overseas, he is creating new ones on the homefront.
The White House has no authority to do any of this, of course. The White House knows they have no authority to do any of this. Biden is doing it anyway.
Norms®? Standards™? Not for Biden. He has chosen constitutional crisis.
Published in Politics
Sorry Jon this is too calm and collected.
You should be demanding he’s impeached to remove from office and barred from serving ever again.
Trump has a rally and you called for his impeachment removal from office and barring him from ever serving again even after he lost the election. Fighting is actually engaged and clearly unconstitutional activity and yet you can’t call for him to be impeached to move from office and borrowed from serving in your headline much less in the body of your article.
How about you actually be outraged in an emotional about what the other side does to us? Nope you only get mad at Trump.
As a conservatarian I am jealous of how the Dems get leaders that are willing to impose their will on the country. If Larry Elder wins and does the things he said he will do, perhaps it will teach Republicans how to lead. He has promised to use all levers of power to free the people. Imagine that….
Will never ever happen.
Republicans don’t want actual change they just want the perks. Conservatorians don’t want actual change they just want to be able to carp.
I wonder whether the President has legal authority to issue a vaccination mandate in this way. I expect that someone will bring a lawsuit very quickly, and we’ll see what the court does. It does seem like a good case for a preliminary injunction, if the President’s authority in this area is unclear.
Such a suit could also raise the constitutional issue, on which there is SCOTUS authority upholding a vaccine mandate, but it’s pretty old (1905, if I remember correctly). This would give an incentive for a court to take a narrow view of Presidential authority, to avoid the constitutional question.
You said you didn’t like it when I was emotional. But thank you for reminding me you didn’t like an article I wrote nine months ago. Very germane.
Bryan, on what basis do you think that President Biden could be impeached at this time?
That is smug and stupid.
But hey, Smug is THE mode for the powers that be at Ricochet. It is all you know.
The Housing Moratorium. The man said it was clearly unconstitutional and did it anyway.
And that is more than impeaching someone for holding a rally.
You’ve launched the same complaint at me for nine months straight. Got it. You’ve apparently decided I’m a bigger threat to the US than Joe Biden, as is your prerogative.
Time for red states to dust off their state guards and get to work on that well-regulated militia.
Just in case Biden gets any ideas.
Is that what you take away from that?
Sorry, let me be clear:
I think you are more against Trump than you are against Biden. I think being against Trump is more important to you than being for the actual rule of law.
If you were as outraged by Biden’s clear tyranny as you were about Trump holding a rally, then you have a funny way of showing it.
I voted for Trump. I did not vote for Biden.
The 1905 case – Jacobson vs. Massachusetts in 1905 – upheld the constitutionality of a state law mandating vaccination.
It would seem that presidential authority does not extend to a vaccination mandate. What is your take Jerry on a federal law mandating vaccinations? Would that be upheld? To uphold a federal law it would seem that SCOTUS would need to stretch the commerce clause once again well beyond the breaking point. But who knows?
I question the will of congress to pass such legislation in the first place.
What are your thoughts?
But you wanted him Impeached a second time, removed from office, and barred from office ever again. For holding a rally.
Meanwhile, you don’t demand the same of Biden for actually violating his oath of office.
The two things are not consistent.
Too bad none of you guys stood up to these people back in December when we could have done something about it. The solution is to get in touch with those people in Arizona who are fighting to save this country.
Great questions.
Since Wickard v. Filburn, the smart money has been against any Commerce Clause challenge to a federal law. There have been occasional victories, like Lopez, but they are few and far between.
Re Presidential power: I very much doubt that the President would succeed in a claim of unilateral authority to institute a nationwide vaccine mandate. I don’t know whether there is general enabling legislation on which he can rely. It looks like the current mandate is more narrow, though I haven’t read the details. It seems limited to federal employees, contractors, and medical personnel. The President may have more discretion in these areas. I’m not going to reach a firm opinion yet, as I expect that lawsuits are being drafted right now, and I haven’t done any legal research on the issue.
Re Congressional power: I think that it would be a close case, but I’d predict that a uniform national vaccine mandate would not be struck down as beyond the Commerce Clause power, because of the large economic impact of Covid. This would be a pretty close call under Lopez. However, if Congress were to draft it more narrowly, to be tied to certain benefits in areas that Congress already regulates — medical care, air travel, federal employment, federal contracting, and the like — I think that it would be upheld pretty easily against a Commerce Clause challenge, under current jurisprudence.
In theory, I advocate for a narrower Commerce Clause power, but I doubt that SCOTUS would use these circumstances to make such a change, if it were inclined to do so at all.
First of all, I don’t think that the President said what you say he said about the housing moratorium. Here’s a story with more details.
Second of all, you should be careful before concluding that passing a law, or taking an action, that SCOTUS has found unconstitutional is an impeachable offense. By this standard, the Texas abortion law is impeachable.
No, it isn’t.
Biden passed the Texas abortion law?
and SCOTUS has ruled that the Texas abortion law is unconstitutional?
I didn’t know that!
Jon, I am indebted. I don’t follow the news, and am no longer able to connect the dots as with (for example) the nullification and supremacy stuff *apparently* now floating around in our discourse. Sheesh.
Maybe I was unclear.
The Texas abortion law is plainly unconstitutional under current law. This is not close. You are correct, of course, that Biden did not pass such a law. My point is that we should not elevate policy disagreements into impeachable offenses. It’s not wrong for Congress to pass, or the President to sign, a law that SCOTUS thinks is unconstitutional, because Congress or the President may disagree.
I don’t want to live in an America where the president can do whatever he wants regardless of law, courts or public opinion. I’m tired of government by executive action, no matter who the executive. I’m tired of congressional fossils who do nothing save get reelected. We are hurtling into a tyrannical abyss at a breakneck pace. We tut-tut over Australia…we are more than well on our way towards an equivalent tyranny.
One day very soon the notion of impeach, remove and bar from office will seem so very quaint. We are behaving like subjects and not citizens.
But it’s okay. It’s for your own good. Just follow along.
Shall we impeach Texas then?
Biden’s opening the Southern border is an impeachable offense, and has been from Day One. He has refused to enforce the existing immigration laws, inviting illegal aliens to come in and take over our country. He should have been impeached in January.
Wow.
And a law degree to be that wrong.
Please explain how Trump was erratic when it came to the rule of law and the constitutional order. Examples? He consistently won at the Supreme Court as compared to his predecessor.
You lawyers astound me with your inability to see things in simple, logical terms. The President has no legal authority to force my kid to get an injection in order to work at Subway. You guys get so lost in legal minutiae that you seem incapable of boiling things down to real-world implications. Of course the government can’t force a vaccine on someone who refuses it, not unless they want a fight. The notion of preventing them from earning a living by refusing it is simply counter to every aspect of liberty our nation was founded on, and unlike Australia, the remedy was secured in the Constitution. People need to read the Declaration of Independence once in a while and stop entertaining totalitarianism while calling it precedent.
This is great.
“Mr. President*! Mr. President*! How will we combat COVID!?”
“Okay, for starters, you lose your job.”
You know, if this administration was deliberately trying to destroy the American economy and the middle class, I don’t see how they’d be doing anything different.
Yes, and what a way to lose more of the black vote. You go, Joe!!
Does he not know many blacks are vaccine-hesitant (because of the Tuskegee Airmen, er somethin’) and blacks are disproportionally represented in federal government employment?
These people in the administration/bureaucracy are so out of touch, the good guys may win the war after all — just by default, with no shots fired.
I guess I’ll take what little hope you offer. I see an action like this as crossing the Rubicon. There’s no way back from here. America is over.