Executive Orders At The Boundary of Legality

Eric Posner makes a point, both accurate and disturbing, arguing that Democrats, and thus President Biden, should not shy away from the unilateral use of Executive power to get things done.

This discomfort with the “imperial presidency,” as the historian Arthur Schlesinger Jr. called it, is not new. Liberals have worried about an excessively powerful presidency since at least Richard Nixon.

But Democrats should be careful what they wish for. While undoubtedly many reforms of the presidency are overdue — including elements of the Protecting Our Democracy Act, which would increase congressional oversight and reduce conflicts of interest — a weakened presidency would hamper national governance, and Democratic policies in particular.

When President Obama found it impossible to work with Congress, he proclaimed that he had a pen and a phone and would do what he had to do. As even Posner concedes, this went to the edge, if not over it.

Mr. Obama kept the laws alive through unilateral actions, some of them on the boundary of legality.

His successor took office and signed papers to undo these actions, as well as some new actions of his own, and Biden, on his first day, sat next to a tall stack of Executive Orders to do the same. The wisdom of undoing everything Trump did is questionable; there’s a sense that if it was related to Trump, it must be inherently bad. Probably, but then blind squirrels eat too. Posner’s point is that if Republicans aren’t ashamed of abusing Executive authority, why should the Dems be?

But the point is that now, with Mr. Biden in the Oval Office, it will be difficult — if not impossible — to reverse Mr. Trump’s reversals unless Mr. Biden has the same powers to engage in unilateral action that Mr. Trump, Mr. Obama and earlier presidents enjoyed.

Or to put it less benignly, just because it’s wrong doesn’t make it ineffective. Why not continue the downward spiral of pushing the boundary of legality when it works so well? Don’t the ends justify the means?

One of the Executive Orders signed by President Biden, for example, seeks to rewrite the Civil Rights Act of 1964 in a way that Congress has rejected many times over.

Section 1.  Policy.  Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love.  Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.  Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes.  People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination.  All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.

These principles are reflected in the Constitution, which promises equal protection of the laws.  These principles are also enshrined in our Nation’s anti-discrimination laws, among them Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e et seq.).  In Bostock v. Clayton County, 590 U.S. ___ (2020), the Supreme Court held that Title VII’s prohibition on discrimination “because of . . . sex” covers discrimination on the basis of gender identity and sexual orientation.  Under Bostock‘s reasoning, laws that prohibit sex discrimination — including Title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681 et seq.), the Fair Housing Act, as amended (42 U.S.C. 3601 et seq.), and section 412 of the Immigration and Nationality Act, as amended (8 U.S.C. 1522), along with their respective implementing regulations — prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.

Discrimination on the basis of gender identity or sexual orientation manifests differently for different individuals, and it often overlaps with other forms of prohibited discrimination, including discrimination on the basis of race or disability.  For example, transgender Black Americans face unconscionably high levels of workplace discrimination, homelessness, and violence, including fatal violence.

The EO thereupon directs executive branch agencies to “revise, suspend or rescind” all “existing orders, regulations, guidance documents, policies, programs, or other agency actions” to conform with this new policy. There are two major problems, the first being that Bostock did not hold that Title VII (or any other law referencing sex discrimination) prohibited discrimination on the basis of gender identity or sexual orientation.

The second is that implementation of this foundational shift will be put in the hands of bureaucrats, like Catherine Lhamon of DoE Title IX infamy, and Vanita Gupta, who issued the DoJ transgender bathroom threats, both of whom are being brought back into the Biden administration.

To state the obvious, this doesn’t mean that discrimination on the basis of sex isn’t prohibited, but what that means in the daily office or school routine will be subject to a system of rules and punishments crafted not by elected officials in Congress, but activists in the bowels of federal agencies determined to “reimagine” your world as they dictate.

Posner’s point, that Biden’s issuance of Executive Orders is far faster and more effective than the lengthy and onerous process of going to the legislative branch to make legislative decisions, is right.  Even a Democratic House and Senate will be subject to the most moderate Democrats whose votes are needed to make it over the hump of passage.

But then, Posner’s point about pushing the boundary of legality to accomplish progressive ends when Congress, even with a Democrat majority, won’t go along, should still matter. If the Imperial Presidency is bad and wrong, it becomes no more good and right in the hand of President Biden and his bureaucrats.

23 thoughts on “Executive Orders At The Boundary of Legality

  1. Pedantic Grammar Police

    What? You don’t want a transsexual recruiting your grandchildren at the library during Drag Queen Story Hour? You’re a racist gay-hater, and probably a traitor too! You will now be punished, not only by the Twitter mob, but also by woke Uncle Sam. The trans agenda will be jammed down your throat; resistance is futile.

    Now that Evil Orange Man is gone, the PODA will be quietly forgotten. One of the best things about the Trump administration was its incompetent inability to accomplish the vast majority of its stupid goals. Infamous ineptitude has now been replaced with evil expertise. Relax and enjoy it.

    1. SHG Post author

      Deep breath, PGP. No one will force your grandchildren to wear a dress. Pantsuits are perfectly acceptable.

  2. Quinn Martindale

    “…Bostock did not hold that Title VII (or any other law referencing sex discrimination) prohibited discrimination on the basis of gender identity or sexual orientation.”

    Didn’t it? The common understanding is that it did, and I don’t understand how your linked post disagrees. You wrote that the “Court asserted … logic constrained the word “sex” to compel the Court to bring homosexual and transgender discrimination within the ambit of “sex.”

    1. SHG Post author

      You’ve been around here long enough to know that I’m disinclined to re-explain things using smaller words for the intellectually challenged.

  3. B. McLeod

    The excesses that will bring back a Republican in 2024. Starting on the very first day, because they apparently learned nothing from the whole Trump experience.

    1. SHG Post author

      Two years is a long time. Don’t sell the Republicans short on their ability to blow two unlosable senate seats in Georgia.

  4. B. McLeod

    Of course, there are still the courts and (for now, at least) the Religious Freedom Restoration Act.
    Two days ago, a federal district court in North Dakota ruled the Obama coverage mandate for gender reassignment was overbroad and cannot be applied to force performance or coverage of the procedures by entities with sincerely held religious beliefs contrary to the mandate’s assumptions about human sexuality and procreation.

    1. SHG Post author

      Courts are part of the problem. They’re a bludgeon when we need scalpel. Lawfare is not a substitute for a viable legislative branch and restrained executive branch.

      1. Kathryn M Kase

        What do you mean by viable? A Congress that isn’t the id of America? While awaiting Caro’s next installment of the Johnson biography, I recently re-read “Master of the Senate” and was struck by how little Congresscritters and their methods in whipping up segments of the electorate have changed.

        1. SHG Post author

          For better or worse, Congress is designed to be the body that makes law in our tripartite system. Don’t hate America.

      2. B. McLeod

        Yet for the immediate future, they may be the only remaining check on mandatory political correctness.

  5. Richard Parker

    We are now ruled by Imperial Ukase. Each Tsar reverses the previous Tsar. “Constantine and Constitution! Ura!”

    Not se very long ago I taught US Constitution courses at the lower division level. I could not do that any more without a mixture of tears and laughter. Our system is now a corrupt oligarchy and no real change is possible.

  6. Jake

    America, once the strong, stalwart partner to our allies abroad, now reduced to little more than a drunkard, sailing down the freeway in a 2000 Cadillac Eldorado and swerving back and forth, back and forth.

      1. L. Phillips

        Precisely. Now the ’72 Eldorado soft top. . .that was a car. Plus it is large and heavy enough to make the swerving drunk example really work.

    1. KP

      You’re right, America is Elvis all over. Once admired when strong and hopeful, declining into over-weight saggy middle-age and now an old drunkard. Trump was the only entertaining thing to happen that reminded the rest of the world Elvis was at the party. No-one will care what Biden and the other parasites say.

      America will be the Spain or Portugal of the 2100s as we inevitably look to Asia for world power, hopefully a multipolar spread rather than just China.

  7. KeyserSoze

    One of the penalties for refusing to participate in politics is that you end up being governed by your inferiors.
    — Plato

    It seems we are in a race to the bottom, regardless of who is in office.

      1. KeyserSoze

        Good one. I love Calvin and Hobbes!

        Going down hill is easy. Vice is easy. Tearing down institutions is easy.

        Going up hill is hard. Virtue and principles are hard. Building up social structures and institutions is hard.

        Set blaster to deep fat fry!!!

        1. Dave Landers

          I think our society would be in a better place if a new generation started to read Calvin & Hobbes. My plan for myself is to purchase and distribute to my restaurant employees C&H books to give to their children. Please don’t tell them. I’m planning it as a surprise.

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