And he knows our self-appointed watchdogs won’t say a word.
And he knows our self-appointed watchdogs won’t say a word.
A sked yesterday whether he possesses the authority to impose a national mask mandate on every school in the nation, President Joe Biden offered up a truly chilling answer. “I don’t believe that I do thus far,” he said, speaking from the East Room of the White House. “We’re checking that.”
“Checking.” “Thus far.” We’ve seen this movie before.
There are few things more alarming than hearing Democratic presidents tell reporters that they lack the power to do something, for, instead of representing confirmations of the executive branch’s limited power, such professions typically serve as overtures to an announcement that they intend to do it nevertheless. Before ordering DACA in 2012, then-President Obama said repeatedly that he lacked the authorization to do anything of the sort. “I am president, I am not king,” Obama said in 2010. “I can’t do these things just by myself. We have a system of government that requires the Congress to work with the executive branch to make it happen.” In 2011, he repeated this asseveration: “With respect to the notion that I can just suspend deportations through executive order,” Obama confirmed, “that’s just not the case, because there are laws on the books that Congress has passed.” In 2012, he did it anyway.
Last week, President Biden pulled the same trick. Having established through an aide that he lacked the authority to issue a national eviction moratorium — the president, Gene Sperling explained, had “not only kicked the tires, he has double, triple, quadruple checked”; having publicly noted that the “bulk of the constitutional scholarship said that the order was not likely to pass constitutional muster”; and having acknowledged that the Supreme Court had explained that, in ordering the measure, the executive branch had “exceeded its existing statutory authority” — Biden simply changed his mind. Asked why by Philip Wegmann, Biden submitted that he hoped to game the appeals process and “keep this going for a month — at least.”
As with the eviction moratorium, President Biden knows that he does not enjoy the power to order universal masking in schools. And, as with the eviction moratorium, President Biden knows that we know that he does not enjoy the power to order universal masking in schools. He just doesn’t care. Why not? Well, because the aim here is not to convince, but to confuse — and because President Biden knows that, in pursuit of the goal, he can count upon an embarrassment of accomplices willing to sell his burlesque.
And it is burlesque. This is not an “open question.” It is not a “gray area.” It is not a “thorny one.” It’s not even a matter of statutory interpretation. By explicit design, the federal government has almost no police powers of the sort that would be necessary to set masking rules in each of the nation’s schools; those powers, by virtue of the enumerated powers doctrine and the Tenth Amendment that reinforces it, are reserved to the states. In Florida — the state that has so annoyed Biden — the schools are mostly run locally, but, because those localities are themselves creations of the state government, they are ultimately superintended by the Florida legislature and the executive branch to which it has delegated certain tools. Using those tools, the governor of Florida has established a set of masking rules. The very idea that the federal government would have a say over this is preposterous, given that there is no provision with the federal Constitution that so much as intersects with this question. There is, as Joe Biden knows, nothing here to “check.”
But, again: Joe Biden isn’t really “checking,” so much as he is tasking his team of lawyers with determining whether there is some vague executive lacuna contained within some unrelated statute that could plausibly be retooled as an emergency power. And who knows, maybe he’ll find one! If the last decade or so has taught us anything, it’s that Democrats can count on pretty much every part of the academic, legal, and media establishments to run cover for them when they’re breaking the law. Under President Donald Trump, we were treated to four long years of outrage, each and every time that he abused his office. Under Joe Biden, we have heard nothing. Last week, Joe Biden attacked the authority of both Congress and the Supreme Court. This week, he is taking direct aim at the federal system. In neither case have our self-appointed watchdogs said a word.
At present, those who wish to limit presidential imperialism face three serious problems. The first is that the U.S. code is planted thick with inchoate federal statutes that leave sweeping areas of our politics up to the discretion of unelected agencies. The second is that, over time, the federal government has come to control such a large share of the money that is collected and spent publicly that it is often able to achieve via bribes what it could not achieve directly via legislation. (If, in 1984, Congress had ordered all 50 states to set their drinking age to 21, the measure would have been invalidated in the courts as a clear violation of federalism. But, because Congress merely threatened to withhold funds, the move was upheld.) The third is that the press worries about abuses only when they are executed either by a Republican or in service of a policy of which it substantively disapproves. Over time, this combination of a limitless federal slush fund, a thicket of congressionally delegated powers, and an irredeemably schizophrenic press has pushed power not only up to the federal level per se, but into the executive branch in particular. What does Joe Biden mean when he says “thus far”? I’ll tell you: He means that he has not yet contrived a plausible enough legal concoction for his political allies to go along with his game, but that if we give him a few days, that’ll change.
When President Trump left office in January, a good number of political commentators proposed that, while Trump had presented a threat to the system, it would be the “next Trump” who might pose the real danger, because the “next Trump” might be “more competent.” And well he might, for we have not yet come to terms with the idea that the next time our president starts eyeing inappropriate levels of power, he won’t be a brash outsider, but the sort of person who truly understands how Washington, D.C., works. A lawyer, perhaps. Or a senator, with experience on the Senate Judiciary Committee. Or maybe, just maybe, a former vice president, who has learned how this is done, and who believes that the time has come to leave as big a political mark as possible before, eventually, his time runs out.