Remember as you read about the CDC Eviction Moratorium and the dangerous criminal penalties invented by the executive branch that the state and the church comingled this week.
Remember that Representative Ocasio-Cortez, Representative Bush and others, are actually working in good faith – according to the system they believe in. President Biden was safeguarding the alternate Bill of Rights they support, one that replaces the 1st and 2nd Amendments with a right to material comfort. They are in a way not unlike Hezbollah in Lebanon, faith-based actors willing to use the openness of the system to subvert it. Their religion is economic egalitarianism, and they are committed theocrats.
Remember finally, before we discuss this week’s constitutional assault in greater detail, that nothing that happened this week should surprise you. These are expected developments, the signs and symptoms of a straining political union. Of one people committed to two systems. And when we recognize that state-change we can understand these events no longer fit the bill of partisan fight, but core governance challenge.
I’ve written previously in these pages that an obvious and embarrassing signifier of our departure from constitutional order is the term we had to invent to describe one of its main trends: executive action. Readers may remember that we used to talk about Executive Orders – dimly comparing the numbers issued by individual presidents in now-quaint debates about executive branch use of power – or of Presidential Signing Statements as hallmarks of executive branch maneuver.
When President Obama stood in front of the country in November of 2014 and announced the Deferred Action for Parents of Arrivals (DAPA) program, he did so at what should have been the absolute lowest ebb of presidential authority: not only was there no constitutional grant of power to do this, he was acting against the express intent of the legislature, after having losing badly in a midterm in which immigration was an issue, and literally daring the Congress to challenge him on the issue. As I’ve stated previously, we continue to underestimate how much of our political era is determined by this norm-destroying provocation.
Upon that primetime address from the White House, the United States entered a period of constitutional crisis, one that continues to this day. It wasn’t just that Obama made future compromise drastically less likely and presidential elections an order of magnitude more important than they were previously, it’s that the boldness and the sweeping powers claimed by DAPA eliminated an important guardrail. With that guardrail removed, both presidents since have sped off the road in pursuit of policy goals the people, through their legislature, do not support.
Obama abused his power knowing that the courts would take a while to catch up, but the escalation by President Biden is even more cynical. Biden actually knows where not just any court, but the Supreme Court, stands, and is still acting in a presumed defiance of that judgment. Even for a Washington creature as long tenured and calculating as Joe Biden, this is seedy stuff.
This will pave the way for a future confrontation, maybe this president, maybe the next, where a president acts in direct defiance of an issued federal court injunction, not just clearly expressed Court opinion from a few weeks prior but a formally issued ruling. (This does not presuppose judicial supremacy, our branches are coequal, but the prescribed powers of the judiciary are put at risk in this type of scenario.) Many commentators on the Left feared that very scenario when Trump was in office, and there are only a few historical precedents of that type of direct conflict – a president defying the Supreme Court – from which to draw.
President Biden can remain confident that this move only benefits him politically, knowing that the single remaining guardrail for Democratic presidents is poll numbers. Filed in the unintentionally chilling desk, the NY Times actually made this exact point early in 2015 after the declaration of DAPA. This was when House Republicans were debating a shutdown over the issue. For those who don’t remember how that ended, Republicans caved. And here we are.
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