A republic, if you can keep it

Matthew Hoy
By Matthew Hoy on October 5, 2021

In 1787, as Benjamin Franklin exited Independence Hall in Philadelphia he was asked what form of government the Founders had settled on. He replied: "A republic…if you can keep it."

We've had a good run, but it appears as though it's ending. We still have a republican "form" of government on paper, but over the past decade it's becoming more clear that many Americans, on both the left and right, would prefer something more like a benevolent dictatorship with all political power vested in the president. The House and Senate are little more than a Greek Chorus, and the Supreme Court is a mere bystander, often cowed by threats from Democrats.

It starts with a subtle shift

In 2002, GOP maverick Sen. John McCain (R-Ariz.) and Sen. Russell Feingold (D.-Wisc.) passed a campaign finance reform bill that was really little more than an incumbent protection act.

Among other things, the act prohibited people from banding together to criticize politicians when their words would have the most impact—in the days and weeks nearest to Election Day. It was so constitutionally suspect, that the American Civil Liberties Union (then still concerned about protecting civil liberties) wrote a letter detailing all the ways the act violated the First Amendment.

And yet, then President George W. Bush signed the bill into law, while acknowledging in his signing statement that there were portions of it he believed to be unconstitutional.

Certain provisions present serious constitutional concerns. In particular, H.R. 2356 goes farther than I originally proposed by preventing all individuals, not just unions and corporations, from making donations to political parties in connection with Federal elections.

I believe individual freedom to participate in elections should be expanded, not diminished; and when individual freedoms are restricted, questions arise under the First Amendment.

I also have reservations about the constitutionality of the broad ban on issue advertising, which restrains the speech of a wide variety of groups on issues of public import in the months closest to an election. I expect that the courts will resolve these legitimate legal questions as appropriate under the law.

As president, Bush took an oath to protect and defend the constitution. That is not a meaningless oath. It didn't excuse him—nor does it excuse representatives and senators who take the same oath—from using his own considered judgment when signing a bill. If believes there are provisions that are unconstitutional, then he should veto the bill. The Supreme Court may have the last word (or maybe next-to-last if you consider a constitutional amendment as the last word) on the constitutionality of any law, but that doesn't mean they have the only word.

'I have a phone and a pen'

On March 23, 2010, President Barack Obama signed the Affordable Care Act (aka Obamacare) into law. His next major legislative initiative was so-called comprehensive immigration reform. A popular provision of that legislation was the DREAM Act, which would legalize the status of children brought to the U.S. illegally by their parents.

But Obama had expended all of his political capital. Democrats and Republicans in Congress refused to compromise to pass any legislation, both perhaps preferring to have the subject as a political issue instead.

Then a political shift took place. In the midterm elections, the the GOP took over the House, gaining a whopping 63 seats, along with significantly narrowing the Democrats' control of the Senate by gaining 5 seats in that body.

Now, with control of the two legislative bodies split, if the subject was as pressing and important as everyone claimed it was, the two sides would compromise and get something passed that neither side would be completely happy with, but would reflect some priorities on which the two sides could agree.

But why compromise in Congress when your guy's in the White House?

On Nov. 20, 2014, just over two weeks after the GOP grabbed nine seats in the Senate and 13 in the House, Obama announced that he would basically enact the DREAM Act through executive action (DACA—Deferred Action for Childhood Arrivals), twisting the concept of prosecutorial discretion into something more resembling executive nullification.

Republicans pointed out that Obama had said repeatedly (and correctly), that he didn't have the power to do what he just did.

Over the next year, Obama continued his "pen and phone" lawmaking to the consternation of his political foes and the delight of his supporters.

Trump embraces a new 'norm'

President Donald Trump was often lamented by his political foes as being a destroyer of "norms"—the normal standards and processes by which the presidency and Washington, D.C., had operated for decades. In some cases, that could be a good thing—it's not as though the Beltway was corruption-free before Trump arrived, and it certainly wasn't during or after his time in the Oval Office.

Unfortunately, Obama's "pen and phone" legislating via executive action was one "norm" Republicans were happy to use now that the shoe was on the other foot.

Trump, having failed to get congressional authorization to build a wall on the Southern border (largely because there was insufficient Senate support to overcome a filibuster), announced that he was going to declare a "national emergency" and use that to fund the wall, including $3.6 billion appropriated for military construction spending. Predictably, the political positions of the two major parties on the legality of the executive action in the absence of congressional law-making flipped overnight.

Those who had decried Obama's DACA maneuver no adopted the "he has to do it because Congress refuses to act line."

Senate Majority Leader Mitch McConnell, who had previously opposed the president's moves, announced on the Senate floor Thursday the news that Trump would sign the deal, and that he would support an emergency declaration. on Friday, he, too, blamed Democrats.

“President Trump’s decision to announce emergency action is the predictable and understandable consequence of Democrats’ decision to put partisan obstruction ahead of the national interest," he said in a statement.

Democrats, on the other hand, showed newfound concern over the separation of powers and the protection of the legislative branch's prerogatives.

House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer, in a joint statement issued just after the president's Friday announcement, said, "The President’s unlawful declaration over a crisis that does not exist does great violence to our Constitution and makes America less safe, stealing from urgently needed defense funds for the security of our military and our nation.

"This is plainly a power grab by a disappointed President, who has gone outside the bounds of the law to try to get what he failed to achieve in the constitutional legislative process," their statement continued. "The President's actions clearly violate the Congress’s exclusive power of the purse, which our Founders enshrined in the Constitution. The Congress will defend our constitutional authorities in the Congress, in the Courts, and in the public, using every remedy available. "

Say what you will about the wisdom and legality of the moves by Obama and Trump, there was at least some good-faith legal arguments that could be made at the margins to justify the decisions. They weren't particularly strong legal arguments, and in the longer run, they certainly weren't winning legal arguments. But neither Trump, nor Obama conceded at the very same moment that they made their decisions that they knew what they were doing was illegal.

To take that final step we needed…

Joe Biden, quintuple checker

To be completely fair to all the miscreants involved, this was something that originated during the Trump administration. When it became apparent that COVID-19 was spreading at pandemic levels, efforts were made to "stop the spread" by effectively shutting down major portions of the economy, most schools, and directing people to stay home.  The Trump administration used a law that gives the Centers for Disease Control various public health-related powers to stop the spread of disease—things like fumigation, pest extermination, disinfection, sanitation and the like.

The Trump administration, followed by the Biden administration, attempted to make the constitutionally dubious case that the government could effectively take landlord's property by banning evictions under the theory that someone evicted from a home or apartment might move to another state, thus potentially spreading COVID-19 across state lines. It was a stretch when it was enacted, and the taking issues were ameliorated to some extent by the government's program to provide rental assistance (which has been an abject failure at getting funds to tenants and their landlords), but after a June ruling where Justice Brett Kavanaugh noted that Congress—not the CDC—would have to act to extend the moratorium, the idea that Biden could do this on his own became a non-starter.

White House adviser Gene Sperling was asked on Aug. 2, two days after the program lapsed, about the executive branch's authority to continue the program as the eviction moratorium.

Q: Thank you so much, Gene. So, House Speaker Nancy Pelosi is still calling today for the administration to extend the eviction moratorium. She seems to believe that the administration can do it. So what is the disconnect here? Why does she believe you have the power to extend the moratorium but the administration is arguing you don't?

MR. SPERLING: Well, I would say that on this particular issue, the President has not only kicked the tires; he has double, triple, quadruple checked. He has asked the CDC to look at whether you could even do targeted eviction moratorium -- that just went to the counties that have higher rates -- and they, as well, have been unable to find the legal authority for even new, targeted eviction moratoriums.

Biden's COVID-19 Economic Relief Coordinator told the press—and the president too—that the executive branch did not have the authority to extend the moratorium on its own, and it would require action from Congress.

The very next day, the Biden administration announced it was extending the moratorium for another 60 days. And what was Biden's rationale?

"I've sought out constitutional scholars to determine what is the best possibility that would come from executive action of the CDC's judgment. What could they do that was most likely to pass muster, constitutionally? The bulk of the constitutional scholarship says that it's not likely to pass constitutional muster, number one. But there are several key scholars who think that it may and it's worth the effort," he said.

Biden said "at a minimum" that by the time this works its way through the courts, some of the funds will be able to reach renters who are struggling.

Put simply, this was a violation of Biden's oath of office. He vowed to faithfully execute the laws and there should be little doubt that there was little doubt that he could not legally do what he did. His cynical comment that this might help some renters (but screw the landlords) while legal briefs were filed in various courts, is an abuse of the judicial process—something even a below average law school graduate would know.

In  20 years we've gone from a president signing legislation he believes to be unconstitutional to one who knowingly and admittingly directs a federal bureaucracy to take an illegal action.

(Most of) The Supreme Court does its job

Then, last week, a 6-3 Supreme Court decision struck down the CDC's new moratorium. The majority noted that since the relevant provision of the law was enacted in 1944, no president or bureaucrat had issued such a sweeping regulation based on that part of the law.

And the CDC's new moratorium went even further. Violation of the eviction ban by a landlord could result in a quarter-million dollar fine and up to a year in the federal pen. The idea that an unaccountable  government agency could promulgate a regulation which is based on allowing it to do pest control and to fumigate buildings could potentially result in someone going to prison after evicting a recalcitrant tenant from their property should send a chill down the spine of every American.

The dissenting three

The court's liberal wing, led by Justice Steven Breyer, has long fancied itself some sort of super-legislature, creating law from whole cloth when it believes it necessary for the good of the people. The same happened here. Believing it good public policy, the three liberal justices would have basically allowed the CDC to do whatever it wanted.

The statute’s first sentence grants the CDC authority to design measures that, in the agency’s judgment, are essential to contain disease outbreaks. The provision’s plain meaning includes eviction moratoria necessary to stop the spread of diseases like COVID–19. When Congress enacted §361(a), public health agencies intervened in the housing market by regulation, including eviction moratoria, to contain infection by preventing the movement of people. See, e.g., 5,589 New Cases in One Day Break Influenza Record, N. Y. Times, Jan. 29, 1920, section 1, pp. 1–2, col. 1 (“‘[T]he
Health Department . . . instruct[s] all landlords that no person suffering from [influenza and pneumonia] can be removed under any condition whatever without the sanction of the Health Department . . . ’”). If Congress had meant to exclude these types of measures from its broad grant of authority, it likely would have said so.

Of course, legal scholars, including these three justices in most other circumstances, will tell you that this is bass-ackward. Every grant of power from the legislative to the executive branch (and there are far too many of them) doesn't convey the type of absolute power the executive claims to have here. The minority says that if they intended to exclude eviction moratoria that encompasses 90 percent of the nation, they would have to spell that out specifically. However, they did do something like that in the very next sentence of the law that they simply dismiss; providing examples of the sorts of things that the CDC is empowered to do.

National Review's Charles C.W. Cooke perhaps put it best:

The majority’s approach holds that the text of the law matters; that there are discrete and enforceable limits on the reach of each branch; that if legislators are not clear in their purpose, the tie goes to liberty; and that the courts have a role to play in maintaining the constitutional separation of powers. The dissent, by contrast, envisions a system in which the executive branch can do whatever it wants providing that Congress has (a) passed a law that is tangentially related to its action, and (b) hasn’t categorically ruled a given element out.

Our system was designed to prevent this sort of tyranny where this kind of power resides solely in the presidency and can be wielded by bureaucrats over which the polity has, at best, indirect and inconsistent control.

The all-powerful OSHA

As a follow-on to his unconstitutional eviction moratorium extension, President Biden announced that he was using the 1970 Occupational Safety and Health Act to require employers with 100 or more employees to get the COVID vaccine.

The point here is not to debate or take a position on vaccination for COVID-19. It's not whether it's a good thing or a bad thing. The point is whether or not the federal government or the president has the power to act in this fashion, and, if so, is there any restriction whatsoever on their power or is the 10th Amendment a dead letter.

In an article in The Hill, Heartland Institute fellow Justin Haskins points out that the 1905 Supreme Court decision that many who support Biden's action are using to buttress their case that the federal government has this power are mistaken.

Others have pointed to a Supreme Court case from 1905, Jacobson v. Massachusetts, as proof that the president has the authority to issue a vaccine requirement.

It is true that the Supreme Court in Jacobson ruled that vaccine mandates can be imposed by a local government, so long as that government is not acting in violation of state law. And it’s also true the Massachusetts law cited in the case was even more intrusive than the policies now being pushed by the Biden administration. But this argument also fails spectacularly for one very important reason.

In Jacobson, the Supreme Court determined that a local vaccine mandate is permissible under the Constitution because states have maintained their police powers and authority to regulate public health under the 10th Amendment, which guarantees, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

But the decision in Jacobson does not include language indicating that the national government has the same authority. The case has nothing to do with federal vaccine mandates like the one imposed by Biden.

And this, again, is the key: We have a system of laws which at the foundation is the Constitution. We should not be normalizing or accepting actions that flaunt those rules just because, for this particular crisis, we agree with the proposed action or outcome.

Biden's vaccine mandate through OSHA also highlights another problem with a quasi-dictatorial system where checks and balances are ignored, as illustrated in a Wall Street Journal op-ed by David B. Rivkin Jr. and Robert Alt.

[T]he Biden mandate is unreasonably and unnecessarily broad. As announced, it applies to all employees, even those who work at home, as millions have done during the pandemic. It’s simultaneously too narrow, failing to require vaccination for contractors, customers and other nonemployees who may be present at the work site.

It’s overbroad in another way: Previous Covid infection doesn’t excuse employees from the vaccine requirement. Natural immunity tends to be more robust and longer-lasting than vaccinated immunity, according to Marty Makary of the Johns Hopkins University School of Medicine. Worse, Dr. Makary says, there is evidence that people who already have natural immunity are at heightened risk of vaccine side effects caused by an augmented inflammatory response. For these reasons, lawsuits have already been filed challenging employer vaccine mandates as applied to employees with natural immunity.

These are the sorts of fixes that are typically made through the legislative process as stakeholders communicate concerns to their elected representatives and that information is used to write the actual legislation. As we've seen throughout the pandemic, elected executives and bureaucrats are seldom interested in even the most modest limitations on their powers when something really needs to be done.

It's not how our government is supposed to operate.

A republic, if you can keep it

We may be approaching the point where we decide we don't want a republic. Over the past couple of decades, both Republicans and Democrats have elected leaders, both in Congress and to the presidency, who seem to prefer some sort of benevolent dictator when their party controls the White House. The Founders' basic premise on human nature that people given power would zealously guard it has turned out to be faulty as we have become an increasingly complex society.

Over the past 100 years the Congress has come to pass legislation that consists of innumerable clauses and hundreds or thousands of printed pages—that most of them have never read before voting on—that directs supposedly technocratic experts in the executive branch to make rules. When those bureaucrats make rules that have sometimes Kafkaesque effects on ordinary citizens, lawmakers aren't held responsible and the courts, by default, defer to the bureaucrats. (For more on this subject, I recommend Charles Murray's "By the People: Rebuilding Liberty Without Permission.")

The federal government, once believed to have the least power over our daily lives, has come to be seen as the first resort for controlling your fellow citizens. Democrats, holding the smallest majority in the House in recent memory and controlling the Senate only with Vice President Kamala Harris' tie-breaking vote, seek to pass their "For The People Act" which would (perhaps unconstitutionally) strip control of elections from where they have resided for more than 200 years—with the states.

At the state level, you have the once and man-who-would-be-future governor of Virginia, Terry McAuliffe, making the case that parents shouldn't have any say over their children's education.

Again, every level of government wants to take over ever more control of citizens' lives.

I'm reminded of the 1 Samuel 8 and the Israelites demanding a king, and they got Saul. This desire for some one to be in charge and to lead is an integral part of human nature.

The founders understood the dangers of tyranny; of a single man with unchecked power and the havoc that he could wreak on common men. Actions like those described above would be anathema to them.

I'm reminded of a brief scene in an early episode of the Fox TV series "Sleepy Hollow" where one of the main characters was a Revolutionary War-era patriot who is magically resurrected in the modern day. As he is drinking a Starbucks coffee he marvels at receipt which includes a line for sales tax and scoffs that Americans in his time wouldn't have put up with that kind of taxation.

We do. And so much more.

The process matters

At almost every level of government, far too many of us, regardless of our politics, are interested only in outcomes, and not the process.

The process is the rules we've set down at the start. If you don't like those rules, then there are always ways to change them. Some can be changed through legislation or citizen-sponsored propositions. Others might require a constitutional amendment.

In the past, following the rules, the process, gave the outcomes legitimacy. This is what a healthy polity would stand firm on.

No more.

We are deep into the transition from a small 'r' republican government to something far less politically stable, something far more controlling and focused on punishing those out of power—no matter who they may be at the moment.

We need to re-normalize the rules, and abhor dictatorial decrees; especially if we agree with the outcomes. Unfortunately, I'm skeptical that either major political party can elect sufficient numbers of these types of citizens to walk us back from the brink.


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October 2021



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