Recently, the CEO of Southwest Airlines publicly stated that he personally opposed forcibly imposing a vaccine mandate on his employees, but President Biden said the vaccine mandate applied to all companies with 100 or more employees, so the airline had to comply.
Never mind that presidents can’t issue whatever they want in an executive order. We don’t live in a system in which our leaders say “jump” and we are compelled to respond “how high?” We live in a constitutional republic, in which elected officials rely on the consent of the governed, and citizens and politicians alike must abide by constitutional rule of law.
Unfortunately, Biden isn’t the first president to overplay his constitutional hand. Obama certainly did, as did Bush under the Patriot Act. The institution of the presidency has been expanding for longer than most Americans realize, and now our polarized, dysfunctional Congress has given modern presidents the excuse they needed to circumvent the legislative branch when creating new sweeping policies.
This is what Americans need to know about presidential power and why we need to reject the invalid orders coming out of the current White House:
1. Presidential powers have been expanding for quite some time.
Article II of the U.S. Constitution outlines the president’s (a.k.a, executive’s) powers and responsibilities, which include: the “power of the executive” (i.e., enforcing the laws and overseeing the executive branch), ability to sign and veto bills from Congress, appoint Supreme Court justices, federal judges, and the heads of executive agencies, power to issue pardons, and the position as the Commander in Chief as well as Top Diplomat with the ability to negotiate treaties.
It probably won’t shock you to hear that the presidential powers and executive branch have expanded since the ratification of the U.S. Constitution. This is the result of several factors, one of which is the expanded scope of government in general as a result of FDR’s New Deal and LBJ’s Great Society reforms. Another one is the development of the intelligence agencies during the Cold War.
And when it comes to issues of national security, Congress has delegated its power to the executive branch at an astonishing rate over the past seventy years. The AUMF passed after 9/11 is one of the most recent of these blank checks four administrations and counting have been able to cash in again and again.
Presidents in the 21st century are claiming more power when it comes to domestic policy by issuing executive orders and signing statements (the only different between the two is the latter is not published in the Federal Register) that are more like laws than narrow presidential directives. I would say that such orders are a clear over-reach of executive power and unconstitutional, which is why Biden’s vaccine mandate (along with several other edicts) are illegitimate.
2. There are dangers to our democratic norms when presidents rely on unilateral, emergency power.
One of the earliest and most controversial uses of executive emergency powers is when President Lincoln suspended the writ of habeas corpus (the right to know the charges against you when imprisoned, also the right not to be imprisoned without formal charges) during the Civil War so that he could imprison alleged Confederate allies and spies indefinitely. Despite the Supreme Court’s repudiation of this (Ex Parte Merryman, 1861), Lincoln refused to back down because he believed that his violation of one part of the Constitution was necessary to save the union and thus uphold the rest of the Constitution.
How many modern unilateral presidential actions are about upholding the Constitution, and how many are about pushing through an unpopular agenda or increasing the power of our “public servants”? And the problem is that presidents use these executive orders and signing statements to enact the policies that can’t pass through Congress quickly enough (or at all). Then these orders become entrenched into law because presidents believe that just about anything can count as emergent in some way. Just look at Obama’s “We Can’t Wait” campaign.
Of course, one problem with Biden’s vaccine mandate is that we’ve been told that this new health emergency will never end. Another problem is the vaccines themselves. None of them have been granted full FDA approval, we don’t know the long-term effects of these vaccines, to my knowledge they lack robust, random, representative trials, and they don’t keep people from getting or spreading COVID-19. On this last point, the vaccine helps its recipients create anti-bodies, which can only work to protect those recipients when they are infected with the virus. For more on this, check out:
Even if these vaccines were proven over several years to be both safe and effective, there is still the issue of the government making blanket medical decisions for the entire country. If the government were to issue such a mandate, it would need to come from Congress, the deliberative branch of government in which the duly elected representatives of the people ideally investigate, debate, and craft laws that respect our rights and promote the common welfare.
No president should be able to declare whatever he or she wants and expect that the rest of us follow along because we were told to do so. That’s not how a democratic republic with separation of powers among its governmental branches is supposed to work. That is how non-democracies work, and thanks to the Cold War and War on Terror, this administration has an incredible amount of invasive force to come after anyone who doesn’t go along with its do-whatever-I-say agenda. Read this if you think I’m exaggerating.
3. We won’t want to live with the consequences of an ever-growing executive branch.
I think a good rule of thumb with government is that the larger a government is and the more it does, the more it is likely to infringe on the liberties of its citizens. What is more, the more we accept that our government is operating beyond its constitutional boundaries, the less those boundaries are going to matter.
And we don’t have to go back that many news cycles to see that this is already the case. Take the DOJ’s mobilization of the FBI against parents who resist the destructive indoctrination of their children. Additionally, take the CDC ignoring a Supreme Court ruling and its own jurisdictional limits when it extended the eviction moratorium.
This administration and several state and local governments are abusing their executive power and violating our rights to bodily autonomy, the freedom to make our own medical decisions, and threatening our very livelihoods despite valid religious and medical concerns some have with the COVID-19 vaccines.
Just as we are bound to obey the government, the government is bound to the people. As our founders knew, when a government does not live up to its end of the deal repetitively and systemically, the people are justified in taking action. Now I am not advocating violence, revolution, anarchy, criminality, or anything of the sort. I am saying that I see no reason why citizens are bound to unconstitutional, illegitimate edicts from on high.
That’s what Southwest Airlines’ CEO should have said. If he did, the airline may have lost its government contracts, but business from private citizens would have more than made up for that. And the entanglement between private businesses and the state is another problem, but we’ll have to discuss that another day.
Subscribe for free to get all new Modest Proposals posts hot off the press!