Political Editors / September 21, 2021

In Brief: Will Courts Stop Biden’s Imperial Presidency?

Biden will need to convince the country, and thus the Court, that we are still in a real crisis.

Since the very beginning of the coronavirus pandemic, (primarily Democrat) politicians have used it as an excuse to grab power. Joe Biden won the presidency largely because Democrats and the Leftmedia convinced so many Americans that Donald Trump had mishandled a crisis. Biden did so much better from his Delaware basement.

As for Biden’s imperial decrees as president, however, Andrew McCarthy wonders how much longer he can keep going without a serious rebuke from the courts.

The history of the United States, insofar as concerns the vitality of civil rights in times of crisis, can be summed up succinctly. While a crisis ensues, when there is a real perception of threat to our security, the courts give the executive a wide berth.

They don’t exactly turn a blind eye. It’s more like slow-walking. Cases claiming infringement of fundamental liberties may be rushed into the justice system during a crisis, but courts will proceed cautiously.

He walks through the history of various instances of crisis in the courts, including COVID restrictions, revealing that indeed courts often do give latitude in an emergency. “Things change, though, when the sense of peril ebbs,” McCarthy notes. The Supreme Court began striking down some regulations, and bitingly so. That means Biden’s primary job will be prolonging the “crisis.”

Of course, it is fair enough to point out that, just as the pandemic’s circumstances had changed, so had the Court. Justice Ginsburg had been replaced by Justice Amy Coney Barrett. Philosophically, this marked a shift away from a progressive orientation predisposed to give government a wide berth, toward an originalist orientation more attentive to individual liberty and skeptical about government claims of power that are not firmly rooted in the Constitution, or at least obvious from statutory text.

The Biden administration has now taken a more imperious turn. The president has upped the ante from his lawless edict on evictions to a sweeping nationwide vaccine mandate. There is no reason to believe Biden will stop there. Republicans have the numbers to block him in Congress, and if past is prologue, those numbers will get worse for Biden after the midterms. If he cannot appease his party’s rancorous progressives with legislation, his only option is to try to rule by executive order. The Court’s shift is going to be a challenge for him.

A challenge, but not the challenge.

It is not for nothing that Rahm Emanuel, in his incarnation as first chief of staff in the Obama-Biden administration, infamously proclaimed, “You never want a serious crisis to go to waste.” In a serious crisis, the Supreme Court tends to go AWOL … or worse. Biden’s challenge will be to convince the country, and thus the Court, that we are still in a real crisis — something beyond his own ineptitude or his advisers’ stage-managing.

The Court’s conservatives will be open to arguments that the Constitution gives the elected branches wide latitude to deal with real threats. They will not be open to claims that the Constitution is a dead letter just because the president says so.

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