An apocryphal quote attributed to Plato says, “The measure of a man is what he does with power.” The measure of a president is what he does with the power of his office. As President Joe Biden’s presidency comes to a conclusion, evaluations of his tenure abound. The difficulty in assessing a presidency is that one’s political philosophy often influences the analysis, but one objective criteria is how a president exercises the office assigned to him by the Constitution.
Under our constitutional government of separated powers, Congress has the lawmaking power, the courts have power to interpret the law, and the president and his administrative officials have power to enforce the law.
In modern times, the president and the executive branch have a large share in lawmaking as Congress often delegates portions of its legislative power to the executive branch to provide specific policy details in the form of administrative rules and regulations having the force of law. This is legitimate as long as Congress does not give up too much of its legislative power and as long as the executive branch does not exceed the authority granted to it by Congress. But since the advent of the administrative state, presidents often try to squeeze in through administrative regulations the policies that they cannot get passed through Congress.
The defining characteristic of Biden’s presidency has been evasion of the constitutional parameters for the office of the president. Time and time again, Biden showed a willingness to circumvent the American governmental structure to impose a political agenda by means of the administrative state whenever he could not get his way with the political process that is actually established by the Constitution — lawmaking by the two elected branches of Congress.
Soon in his presidency, the Biden administration’s Centers for Disease Control Director used a federal law granting the CDC power to create regulations to prevent the spread of diseases to impose an eviction moratorium on residential properties. The statute from which the CDC purported to derive its authority was instead concerned with things like “inspection, fumigation, disinfection, sanitation, and pest extermination.” In Alabama Association of Realtors v. HHS, the Supreme Court held that the CDC exceeded its authority because such an action required approval from Congress.
Similarly, the Biden Administration sought to use a law giving OSHA the power to set occupational and workplace safety standards to require employers to impose COVID-19 vaccine mandates for their employees. In NFIB v. OSHA, the Supreme Court held that the executive agency exceeded its authority and that the power to set workplace and occupational safety standards does not include general authority to “regulate the hazards of daily life,” as doing so “would significantly expand OSHA’s regulatory authority without clear congressional authorization.”
The most glaring instance of executive overreach was when the president told the public that he lacked authority to cancel student debt, yet months later, his secretary of education attempted to use a law granting the Department of Education the power to “waive or modify” loan payments during national emergencies to completely cancel student debt obligations more than two years after the height of the COVID-19 pandemic. In Biden v. Nebraska, the Supreme Court held the debt cancellation was invalid because executive agencies may take actions of vast political and economic significance only when they have “clear Congressional authorization” to do so.
Regardless of whether vaccine mandates, eviction moratoriums or student debt cancellation are good policy choices, the Constitution specifies that it is Congress that gets to make those decisions, and it is troubling when presidents skirt our governmental structure for political objectives. In our system of constitutional government, we only give government officials the power that is granted to them by the Constitution. Whenever government officials exceed the power granted to them by law, they take power that the citizenry never gave to them.
It is a testament to the genius of the Constitution, with its structure of separation of powers and checks and balances, that the Supreme Court policed the president within the proper constitutional confines of his office. But as another example of the president’s displeasure with the Constitution getting in the way of his political objectives, he launched political criticisms at the Supreme Court by questioning its legitimacy and proposing unconstitutional structural alterations to the judiciary such as term limits, in contradiction to the Constitution, which says that judges shall serve during “good behavior,” meaning for life or until retirement, to ensure an independent judiciary.
The Biden administration also tried to sidestep the Constitution in attempting to suppress free expression. In a letter to the House Judiciary Committee, Meta CEO Mark Zuckerberg wrote that, “In 2021, senior officials from the Biden Administration, including the White House, repeatedly pressured our teams to censor certain COVID-19 content, including humor and satire, and expressed a lot of frustration with our teams when we didn’t agree.” The president’s administration pressured private companies to do what would likely violate the First Amendment if performed by the government itself.
Americans undoubtedly have competing political perspectives that come with differing desires for their elected officials, but we can all agree that presidents should only govern within the realm of authority that the law gives to them.