Populist leaders throughout American history have railed against the Constitution’s limits on the desires of the people. But never in my lifetime have I seen such wanton disdain among our leaders for the Constitution as I have in the past decade.
As much as we would like to think of the presidency of Donald Trump as a special case, his contempt for our national charter in matters small, medium, and large—while singular in history—is also part of a trend. When Barack Obama was president, he abused his authority right out in the open, too. Now, after just eight months in office, President Biden seems determined to claim his place in the hall of fame of constitutional contempt. After saying he lacked the power to prevent landlords from evicting those who don’t pay their rent, Biden did it anyway. Before the ink had set on the Supreme Court’s decision striking down that action, Biden invented yet another power for himself: to force private employers to require their workers to get vaccinated.
What the New York Times calls a “novel use of a law on workplace safety” is an invented power that violates the letter and spirit of Article II’s limits on the president’s powers. But as has been the case for much of Washington’s decade-long journey into constitutional contempt, this one will end up as pure partisan applesauce. Biden supporters who would have had a fit if Trump had done something similar will stand silent. Biden’s foes who abetted Trump in his worst constitutional abuses will thunder (and raise money) in their umbrage. Indeed, the worst part of Biden’s power grab is that he did it knowing it would deepen divisions as it thrilled the left and outraged the right. But even if it were only a cynical political ploy, that would not lessen its violence to the Constitution.
Nor would a noble goal. Trying to get more Americans vaccinated is urgent and well within federal powers during a pandemic. Biden’s requirement that federal employees get their shots and his order that those entities receiving federal funds mandate worker vaccines are good, practical, and constitutional. But the interstate Commerce Clause does not allow the president to make private companies his proxies for a national vaccine mandate.