The Quiet Lawlessness of Joe Biden

Four years ago today, Joe Biden took the oath of office and made a series of promises: “I will defend the Constitution. I will defend our democracy. I will defend America.” Those words came just weeks after the January 6 riot at the Capitol, but the idea that Biden, the Washington mainstay, would restore the “norms” so often flouted by his predecessor was arguably the very reason American voters elected him in the first place.

As he’s scrambled to try and salvage his legacy in recent weeks, Biden has returned to those themes. “In the past four years, our democracy has held strong,” he said in his farewell address last week. “And every day, I’ve kept my commitment to be president for all Americans.”

No. His “aww shucks,” doddering nature is effective, but Joe Biden’s legacy is not the Restorer of Norms. He is leaving office quietly having caused more damage to the rule of law than arguably any single one of his predecessors.

But what about Andrew Jackson? 

Following the Worcester v. Georgia decision that acknowledged Native American tribes as distinct political entities, Jackson—responsible for the Trail of Tears—purportedly said, “John Marshall has made his decision; now let him enforce it.” Well, after the Supreme Court struck down Biden’s student loan “forgiveness” plan as unconstitutional in Biden v. Nebraska, the president tried again. “Early in my term, I announced a major plan to provide millions of working families with debt relief for their college student debt,” he bragged. “The Supreme Court blocked it. But that didn’t stop me.” 

But what about Abraham Lincoln?

Abraham Lincoln was one of the greatest presidents in American history—if not the greatest—but he did occasionally overreach as the Civil War raged, suspending the writ of habeas corpus multiple times, ignoring a ruling from Chief Justice Roger Taney about the decision, and ordering the arrest of opponents in Congress and in the media. But then again, President Biden encouraged his Department of Justice to prosecute his political opponents, declaring from the steps of Marine One that he hoped the January 6 committee “goes after [Trump administration officials defying subpoenas] and holds them accountable criminally” and that his own DOJ would bring charges against them. In April 2022, the New York Times reported that Biden had grown “frustrated” with Attorney General Merrick Garland’s “deliberative approach” and that he had “confided to his inner circle that he believed former President Donald J. Trump was a threat to democracy and should be prosecuted.” Once Trump was eventually indicted, Biden taunted his opponent about his limited ability to campaign against him: “I hear you’re free on Wednesdays.”

But what about Woodrow Wilson? 

After all, President Wilson infamously resegregated the federal government and enforced the Sedition Act of 1918 to jail thousands of his critics. Hard to beat that one. But Biden did try his best to silence his critics—or at least erase their criticisms—by unleashing his staff to threaten and bully social media companies in an effort to prevent Americans from straying from his political orthodoxy. Meta CEO Mark Zuckerberg told Joe Rogan last week that “these people from the Biden administration would call up our team and, like, scream at them and curse” to take things down that were, in fact, true. As Supreme Court Justice Samuel Alito recounted in Murthy v. Biden:

For months in 2021 and 2022, a coterie of officials at the highest levels of the Federal Government continuously harried and implicitly threatened Facebook with potentially crippling consequences if it did not … crack down on what the officials saw as unhelpful social media posts, including not only posts that they thought were false or misleading but also stories that they did not claim to be literally false but nevertheless wanted obscured.

But what about Franklin Roosevelt?

After the Supreme Court struck down several of his New Deal initiatives, a frustrated FDR threatened to add justices to the court with the Judicial Procedures Reform Bill of 1937. Feeling pressured by far-left critics of the court, Biden created a Presidential Commission on the Supreme Court of the United States after he agreed that the Court was “getting out of whack.” The Commission’s report studied Democratic legislation to pack the court and strip it of jurisdiction to hear cases that could undermine his administration’s priorities. Threatening to destroy the political independence of the Supreme Court unless its justices rule the right way didn’t work for FDR, and it didn’t work for Biden either.

But what about Barack Obama?

Despite his constitutional duty to “take care that the laws be faithfully executed,” President Obama put out memos announcing his decisions not to enforce laws he disagreed with—like marijuana and immigration enforcement. So did Biden, making clear last week his administration would not enforce the TikTok ban that he himself signed into law just months earlier—not because he disagreed with it, but because he didn’t want to be on the hook politically for shutting down the app that is so popular with young people.

But what about George W. Bush?

Bush famously signed the Bipartisan Campaign Reform Act into law while publicly stating the legislation presented “serious constitutional concerns.” But Biden repeatedly told the American people that he did not have the power as president to issue an eviction moratorium, disburse blanket “forgiveness” of student loan debt, or tackle climate change—only to forge ahead with all three and criticize the Supreme Court in the most strident and partisan terms when justices struck them all down.

And of course, but what about Donald Trump?

There is no minimizing how Trump handled his 2020 election loss—attempting to undermine and overturn the results to stay in power. Biden, to his credit, has done nothing of the sort this time around, inviting Trump to the White House and emphasizing the importance of a peaceful transfer of power. But that all played out against the backdrop of Biden trying to rig an election in his own way, hiding his deteriorating mental acuity from the American people—and even leaders of his own party—in an effort to secure reelection based on a facade. In a recent interview with USA Today, Biden conceded that he “[didn’t] know” if he had the “vigor” to serve another four years.

He did this by hiding his condition and blackballing anyone who questioned his competency. Trump infamously attacked special counsel Robert Mueller throughout the course of the Russia investigation. And after special counsel Robert Hur released his report declining to charge Biden for the mishandling of classified documents—in large part because Hur did not believe a jury would convict a “sympathetic, well-meaning, elderly man with a poor memory”—Biden accused Hur of callously asking him when his son died. “How in the hell dare he raise that?” the president bellowed, allowing his staff and block Hur from various employment opportunities. But in actuality, it was Biden who brought up Beau—not Hur. More to the point, the transcript also showed Biden asking his attorney “in 2009, am I still vice president?” 

Trump has also been undermining the rule of law for years, repeatedly and emphatically deriding the justice system as “rigged.” And yet, how else can we describe Biden’s handling of his son’s criminal prosecution this past year? He pointed to Hunter’s indictment as proof that Americans should trust our legal system, even saying after his son’s conviction—related to a firearm restriction Biden supports—that he would “abide by the jury decision” and “not pardon him.” Yet weeks after the election, the pardon came nonetheless—not because he was a devoted father but because he’d “watched [his] son being selectively, and unfairly, prosecuted.” He claimed “no reasonable person” could conclude this wasn’t a politically motivated case—despite the fact that Hunter was prosecuted by Biden’s own Justice Department.

It was all a lie. As the judge overseeing the tax case pointed out, “The Constitution provides the President with broad authority to grant reprieves and pardons for offenses against the United States … but nowhere does the Constitution give the President the authority to rewrite history.” 

Biden’s attempt to rewrite history with respect to the Equal Rights Amendment (ERA) last week is a fitting capstone on his lawless presidency. Congress first sent the ERA to the states for ratification in 1972 with a seven-year deadline, but it didn’t receive the requisite support until January 2020—decades beyond the congressionally mandated deadline and after several original states had voted to de-ratify the amendment.

The archivist of the United States didn’t accept the belated ratification as a legitimate development, and neither has any federal court that has considered the question. The late Supreme Court Justice Ruth Bader Ginsberg (one of the earliest and strongest proponents of the ERA) didn’t accept it, and neither did Joe Biden for the first 1,457 days of his presidency— until it became a question of his legacy. Then, he decided he could simply “affirm what [he] believe[s]” and announce that the Constitution had been amended, concerns about precedent be damned.

As we enter a second Trump administration, there is plenty of concern about the institutional havoc the president-elect could wreak. Might he try to run for an unconstitutional third term? Ignore the Supreme Court if it declares his immigration enforcement actions to be unlawful? Threaten TV networks with onerous regulations and investigations if they air or refuse to censor criticisms of his administration? Refuse to enforce a law passed by Congress that criminalizes fraudulent memecoins or appropriates money for military equipment to Ukraine?

But while these folks were worried about what violations Trump might commit, Biden was actually committing them. He may have been less upfront about his lawlessness than his predecessor, but he did significant damage to our constitutional order and the rule of law in the name of appeasing political supporters and attacking political opponents.

That’s Biden’s legacy—a quiet lawlessness that should live in infamy.