Bench Memos

White House

President Biden and the Rule of Law: The First One Hundred Days

President Joe Biden delivers his inaugural address at the U.S. Capitol in Washington, D.C., January 20, 2021. (Kevin Lamarque/Reuters)

President Biden was propelled into office by a Democratic Party that had veered far to the left, driven by activists bent on securing “transformative” measures to get what they want from the federal government. Too often that zeal translates into disregard for constitutional and statutory law and the coequal branches of government that collectively are charged with safeguarding what Americans value as the rule of law. As the new president approaches his 100-day mark, this is a good time to take stock of the administration’s dismal early track record on the rule of law.

The president began with a flurry of executive orders, most occurring in his first twelve days. One of them revoked a Trump executive order that set out the prior administration’s enforcement priorities and broadly established that the Biden administration would “reset the policies and practices for enforcing civil immigration laws.” The acting secretary of Homeland Security issued a memorandum directing “an immediate pause on removals of any noncitizen with a final order of removal . . . for 100 days” (subject to narrow exceptions).

That directive was quickly enjoined by a Texas district court, primarily because it violated the relevant statute stating that “when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days” (the court’s emphasis). The president has wide discretion in setting enforcement priorities, but he cannot repeal acts of Congress or make a blanket refusal to carry out the law in the very terms it makes mandatory.

For similar reasons, the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program flouted the law, but Biden brought back the program after his immediate predecessor tried to roll it back. Additionally, Homeland Security is rescinding the Migrant Protection Protocols that had kept would-be migrants from Central America in Mexico and curtailed the abuses of coyote smugglers.

There has recently been a surge of migrants along the U.S.–Mexico border, including a record number of unaccompanied teens and children being held in detention cells. Even beyond specific mandates, Biden’s signaled laxity toward immigration enforcement since he was a candidate has undoubtedly contributed to the grim consequences we now face.

Another area in which the rule of law has taken a hit is the federal bureaucracy, which for a long time has aggrandized the power of its own unelected officials and acted like a virtual “fourth branch” of government. The Trump administration took modest steps to rein it in that included executive orders with titles explicitly “Promoting the Rule of Law” — in one case curtailing the improper use of agency guidance documents that effectively impose binding regulations that are inconsistent with the law, in another improving transparency and fairness in enforcement and adjudication. Biden revoked both executive orders, along with others promoting bureaucratic accountability, on Inauguration Day.

Another inauguration day executive order purports to address discrimination based on gender identity or sexual orientation by equating those categories with the sex discrimination prohibited by a number of federal statutes, including Title IX, which is perhaps best known for creating opportunities for women and girls in school sports. Many who agree with the Supreme Court’s literalist rewriting of Title VII’s employment discrimination provisions in Bostock v. Clayton County likely find the executive order unobjectionable, and the order itself cites that decision. But by extending that mode of analysis to contexts that Bostock did not address, such as women’s sports and restrooms, and in the absence of an acknowledgment of weighty religious freedom considerations (which the Court’s opinion had included, if only in passing), the order demonstrates how executive fiat can be at least as damaging as judicial fiat. There is now widespread concern that the administration’s policy could end up destroying women’s sports and disregarding conscience rights.

It is common for a new administration to change some of the prior administration’s litigation positions, but the Biden administration has changed more of the government’s litigation positions in the Supreme Court than the Trump administration did at this point four years ago. The current administration has been justly criticized for litigation gamesmanship as well as its substantive arguments, which include a position on free speech that has been aptly described as “more like that taken by Chinese courts than American courts” in a case involving California’s attempt to force charities to disclose their donors. The administration has also changed positions to narrow protections against government takings under the Fifth and 14th Amendments.

The Biden administration’s greatest potential blow to the rule of law, however, comes in the form of its commission to study structural changes to the Supreme Court. The commission’s membership is ideologically skewed and expected to offer a veneer of legitimacy to court packing. Nothing else proposed by this or any other administration going back to the last serious court-packing effort in 1937 would do more damage to the Court’s independence.

Not that tampering with other branches of government ends there. This week, the Biden administration endorsed legislation to carve the 51st state out of Washington, D.C. — a move clearly calculated to add Democratic seats to the House and Senate. Yesterday the measure passed the House on a party-line vote. Neither Biden nor the House Democrats seem to care that every Justice Department that has addressed the constitutionality of altering the District of Columbia’s status legislatively since 1963 has come out against it . . . with one exception: In 2009, Attorney General Eric Holder rejected the Office of Legal Counsel’s similar conclusion and cited as his thin pretext the willingness of the solicitor general’s office to defend a D.C. voting-rights bill.

This record comports with what sadly has been predictable since before Inauguration Day: The liberal dark-money groups that helped elect Joe Biden were going to get what they demanded from the new administration. In the process, damage to the Constitution and the rule of law barely gets a second thought.

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