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.