May 2, 2023 - 9:01 pm
Joe Biden’s video announcing his re-election bid makes much of his supposed defense of democracy. If it weren’t for that, it strongly implies, he’d be happy to decamp to Rehoboth Beach to a content retirement rather than stay on the job until age 86, guarding against threats to the republic.
There is no doubt that Donald Trump’s conduct after the 2020 election was a disgrace, but Trump’s failings don’t excuse Biden’s lapses. One would think posing as a defender of our system would force Biden to be more fastidious about his own relationship to our institutions and norms, although that doesn’t seem to have occurred to him.
Biden has shown himself to be a determined enemy of the rule of law and constitutional constraints on the power of the executive branch. This is one of the most consequential aspects of his presidency.
Put aside the big kahuna, the student-debt forgiveness, which has no plausible basis in law, and the ongoing treatment of immigration law as a mere suggestion. Just consider the acts that have been in the news the past couple of weeks: the frank defiance of the Comstock Act prohibition on sending abortion-inducing substances through the mail; the rewriting of Title IX on the fly to include gender identity and to impose new nationwide rules on schools regarding males in women’s sports; and the distortion of the rules to make illegal immigrants covered under DACA — itself the product of an edict with no basis in the law about a decade ago — eligible for Obamacare.
All of this alone would be a pretty good record of lawlessness. None of it rates, but it should.
First, in a nation of laws, ignoring or defying the law is simply wrong, period, full stop. Second, by further untethering the executive from lawful bounds, Biden is doing his part to reverse one of the foremost achievements of Anglo America. Through a couple of centuries of political struggle, bloodshed, constitutional thought and trial and error, we neutered the monarchy in England and created a chief executive in America embedded in a constitutional system designed to keep the position in check.
Third, in a two-party system, any action is going to create a reaction. The more Biden governs by willful edict and pretextual legal reasoning, the more incentive it creates for a Republican to do the same. Fourth, ends-justifies-the-means reasoning, which undergirds all these acts, is inherently dangerous and can take you to unexpected places. Fifth, government by administrative edict is itself a form of indirect disenfranchisement by taking power away from senators and representatives who were elected from a dizzying array of states and districts to sit in Congress and actually write the nation’s laws.
Finally, there is no substitute for presidents and other elected officials who take their constitutional oaths seriously. We have grown used to the courts as the sole arbiter of constitutional matters and the backstop against lawlessness. But they don’t always fulfill this function — bad judging and procedural questions such as standing take a hand (and the Biden administration has, in some instances, gamed the system to try to keep the courts from checking it). If the political actors are faithful to our system, the responsibility for preserving it doesn’t fall entirely on the courts.
Now, clearly the attitude of the Biden administration and a supportive media is that a little bit of lawlessness on behalf of a good cause isn’t so bad. So long as Biden isn’t trying to undermine an election result (although his side did that in 2017) or gin up a mob outside Congress, what’s the harm?
But our democracy depends on more than simply holding a vote every four years. Lots of countries have votes; fewer have a system that balances and distributes power, so you have elected officials beholden to a system bigger and more important than they are.
The republic would be safer if Biden were indeed enjoying himself back at Rehoboth Beach.
Rich Lowry is on Twitter @ RichLowry.