In light of Biden’s first few days in office, I figured I’d assess the Constitutionality of his actions. He’s done a lot, that’s for sure, and it would be good if we all had a concrete understanding of the Constitutionality or lack thereof of his actions. If we want to critique him, we better have a concrete reason for the critique. If we want to praise him, we better have a concrete reason for the praise.
I’m referencing an article from the Independent. You can click here if you would like to see the article yourself. It steps through everything Biden did in his first 24 hours in office. I’m simply going through the list and assessing the constitutionality of each action.
Rejoined the World Health Organization and announced Dr. Anthony Fauci would serve as the head of the US delegation
This is an interesting move. The president is given the power to enter into treaties with other nations, with the advice and consent of the Senate. However, the U.S. being a member of the World Health Organization doesn’t quite constitute a treaty per se and therefore this move is in a bit of a grey area. Really, if any branch of government were to do this, it would be the executive branch. His appointment of Dr. Fauci to the delegation is essentially Constitutional, in the grey sense, since the whole delegation is a bit grey.
Ended the previous administration’s travel restrictions on several Muslim majority countries
As far as I can tell, the chief executive has the prerogative to choose how to direct his executive agencies. Since it’s those agencies that are implementing a travel ban, it is within his rights to end a travel ban as well. This is up for debate however. The Supreme Court ruled that Trump’s travel ban was constitutional but not everyone agreed with that ruling.
Swore in nearly 1,000 new administration appointees via Zoom
Naturally, this is Constitutional, albeit unconventional given the COVID precautions taken. Most of these appointees have to be approved by the Senate, although not all of them.
Cancelled permits for the Keystone XL oil pipeline
This is a bit more Constitutionally sketchy as permits for a pipeline could fall under state jurisdiction. However, if it goes across state lines and affects interstate commerce, then it would be within Congressional powers to hand out permits. This is my initial take and it appears that my initial take is on the right path.
The question isn’t really: “Can Biden cancel a permit given by Trump” as much as “Can Trump have given the permit in the first place?”.
If you want a deeper academic answer to this question, check out the following article: “Presidential Permitting for Pipelines: Constitutionality and Reviewability”. In short, the authors conclude (as have many courts) that president can indeed involve themselves with the permitting process of pipelines via the APA or Administrative Procedures Act AND through enumerated power given to the president by the Constitution.
This conclusion is questionable. However, Congress passed a law, the APA, and this gives the president the power to direct the state department on issues like permits. This means that the president is operating within his rights as executor of law. The question then becomes, is the APA constitutional? That is something to be discussed at a another time.
Created a new presidential appointee role, the COVID-19 Response Coordinator to assist with national vaccine distribution efforts
Sure, he can do this. There really is nothing specific in the Constitution about how the president runs his own cabinet or executive departments. It’s left up to him for the most part. He’s essentially just creating more bureaucracy.
However, national vaccine distribution efforts are not really within the federal government’s Constitutional jurisdiction. Health, hospitals are left to the state jurisdictions. In other words, Congress would have to write a law about the distribution of the vaccine, subsequently create an agency to implement it, thereby equipping the president with the power of executing that law. However, such a law would be unconstitutional… so his COVID-19 Response Coordinator is, by default, outside of Constitutional boundaries.
Launched the “100 Days Mask Challenge,” including an executive order mandating mask wearing on federal grounds and encouraging Americans to wear masks for 100 days
I mean, thankfully, he’s not trying force average American citizens to wear a mask and it’s within his Constitutional jurisdiction to direct his executive employees as he wishes. Merely encouraging American citizens to wear masks for 10 days does not violate any constitutional confines. The violations of state constitutional confines are happening at the state level by governors.
Extended the nationwide eviction and foreclosure moratorium until at least the end of March
Eh, this is a bit more fishy. He’s essentially telling his federal agencies (since they are providing federally backed mortgages to people who need them), under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, to extend the eviction time limit for default payments.
Again, he’s directing his agencies on how to implement a law that Congress passed. This is technically within his right to do. The question of Constitutionality comes in to play when we look at the CARES Act itself, not to mention federal aid and assistance to the poor and needy. Federal support to anyone in the U.S. is nowhere mentioned in Article 1, Section 8 of the Constitution and is therefore unconstitutional.
Strengthened the Deferred Action for Childhood Arrivals program via executive order
If you want more detailed information about this, reference this link. In short, Biden “On January 20, 2021, President Biden issued a memorandum directing the Secretary of Homeland Security, in consultation with the Attorney General, to take appropriate action to preserve and fortify DACA, consistent with applicable law.”
DACA of course, is the two year deferment of deportation for illegal immigrants who come into the U.S. under the age of 31 (along with a few other requirements). Biden issuing a memorandum to preserve and fortify DACA is nothing monumental. Again, the constitutionality of DACA pertains more to Congress/bureaucratic agencies rather than Biden.
Is DACA Constitutional? No. That one’s pretty easy. The Secretary of Homeland Security announced the creation of DACA in 2012. It was not written into law by Congress, the only branch allowed to write law and the only branch given the explicit right to write law on issues of immigration (aside from states, who are supposed to have most of the control over this area). Things get worse when we realize that the Department of Homeland Security is not even constitutional. But, that’s a whole other article altogether.
Avril Haines confirmed as the first woman to lead USIC as the new director of national intelligence
This is fine. She was appointed to a Congressional created federal agency by Biden and confirmed by the Senate. Is the Office of the Director of National Intelligence constitutional? Ah, well, that is another question entirely, isn’t it? You see how this works?
Rescinded the 1776 Commission, created under the Trump administration to help reshape how public schools teach the history of slavery
This commission wasn’t really Constitutional to begin with since the federal government was given absolutely no authority over education by the Constitution. All issues of education were left to the states, so all federal commissions, agencies and the like that deal with education are simply unconstitutional. Biden’s choice to rescind it? Eh, he really shouldn’t have control over issues like this but at this point, it’s already been done so he may as well do what he wants with it.
Rejoined the Paris Climate Accord via executive order
Hmmm, well this one is more frustrating to judge because we’re looking at even more layers and layers of unconstitutional behavior leading to this action. Is an accord a treaty? It pretty much is, which means that it must be approved by the Senate. However, Biden simply used an executive order and by-passed the Senate. And yet, per the Sole Organ Doctrine and the Curtiss-Wright Supreme Court case, the president is acting within accepted judicial precedent regarding presidential powers in relation to foreign nations.
Reversed components of immigration enforcement expansion under previous administration via executive order
Mmm, well, again this is more a question of the initial law’s constitutionality than anything else. That being said, he’s taking a lot of power here and essentially writing law himself, which is not Constitutional. Immigration law is just that, law, made by Congress. Only Congress can change the law. Further, Congress is Constitutionally confined to broad immigration laws while the details regarding immigration law are left to the states.
Paused student loans payments and the accruing of interest on all federal student loans until at least the end of September
Since this is a Department of Education/U.S. Treasury issue, both within the executive branch, this is a semi-constitutional move. By that I mean, those loans should really have never been given out in the first place since education is not within the federal government’s realm of power. Again, I hope you see how this works. There are so many unconstitutional laws and agencies stacked upon each other than government can almost do nothing at this point that doesn’t violate the Constitution.
Ordered a regulatory review at the Office of Management and Budget to undo the previous administration’s regulatory approval process
Sure, this is fine. He’s reviewing how a federal agency operates and this federal agency is, within reason, constitutional.
Halted the construction of new border security installations along the US-Mexico border
Welp, this is again a bit questionable. The last immigration law that Congress wrote was in 2000 when they passed the Legal Immigration and Family Equity (“LIFE”) Act of 2000. This means that all actions taken by the federal agencies or by the president in relation to immigration are simply the executive’s interpretation and/or version of how they have decided to implement the law. So, yeah, constitutionality here is very questionable since the Constitution is pretty clear the president “see that the laws be faithfully executed”, not faithfully re-written and executed his way. And yes, that applies to all the republican and democrat presidents since 2000.
Announced new executive orders for school and business reopening plans
Yikes, egregiously unconstitutional. Again, since when did the president get unilateral control over education, it’s operation and transportation? Well, never.
Ordered the inclusion of non-US citizens in the Census
So, the Census is a constitutionally mandated action, per Article 1, Section 2 of the Constitution. The Constitution does seem to make it clear that people who don’t pay taxes should not be included in the count. The question though, is whether or not the president has the final say in something like this since Congress was the one given the power to handle the census in Article 1 of the Constitution. So, my gut tells me that no, neither Trump nor Biden should have the right to alter who is included in the census. Only Congress can do that.
Implemented new ethics pledges for executive branch employees
He can do what he wants here. They are his executive employees now.
Signed executive order preventing workplace discrimination based on gender identity or sexual orientation
Sure, again, this is fine as long as it’s confined to executive agencies. They are all under his jurisdiction.
Extended work authorizations and deportation deferrals for select immigrants until at least June 2022
No. This should always be left to states and Congress. He’s taking a lot of unilateral power here that is not his to take.
Attended the Virtual Presidential Inaugural Prayer Service alongside the first lady, vice president and second gentleman
There’s nothing unconstitutional about this.
Held the first White House press briefing led by Press Secretary Jen Psaki
He’s welcome to handle the press as he wants. The Constitution says little about this.
Announced new executive orders to expand Covid-19 testing
No. This is not Constitutional. It’s really rather simple. Health issues are left to the states. Otherwise, we have a bloated government forcing states to do things that they don’t need to do simply because some other states may need more strict regulations.
Renovated the Oval Office, replacing interior decorations and adding a bust of Latino civil rights leader Cesar Chavez, as well as a portrait of Benjamin Franklin look up
Sure. He can do what he wants here, although I do wonder why on earth he would put Cesar Chavez on his desk.
Implemented White House Covid-19 precautions including mask wearing, frequent testing and new social distancing measures.
Sure… it’s his White House now.
Transportation Secretary nominee Pete Buttigieg began nomination hearings with the Senate Commerce, Science and Transportation committee
This is being handled Constitutionally.
Delivered additional calls for national unity with speeches by president and vice president at inauguration night concert
He can say what he wants.
Created plans to host congressional leaders this week from both parties at the White House
Sounds like a good plan.
Scheduled themed days for the next week to focus on specific policy priorities, including “economic relief,” “Buy America,” “Equity,” “Climate,” “Health Care,” “Immigration” and “Restoring America’s Place in the World.”
Hmmm, well economic relief is not within the federal government’s Constitutional jurisdiction, nor is equity, climate, or health care. So, while creating a plan is fine, I’m concerned about the Constitutionality of the actions that may be taken on the “days”. I’m not sure what “buying America” means, or what “place” he plans to restore America to in the world, nor how he plans to do that. Immigration, when Congressionally handled, is Constitutional.
Prepared plans to overturn key Trump administration abortion policy restricting funding for overseas abortion providers
Well, all funding must come from Congress. So, if Congress had previously approved this funding and he is now releasing it, he’s within his rights. If not, it’s unconstitutional.
Redesigned the White House website to be more inclusive, with language translations and additional accessibility options
Sure, in this day and age of technology, he and his staff can do this.
Sent a comprehensive immigration bill to Congress to further undo the previous administration’s legacy
This is Constitutional. It’s supposed to go to Congress. I’m not sure how constitutional the actual bill is, but Congress would be to blame if they pass an unconstitutional law.
Placed a moratorium on oil and gas leasing in the Arctic National Wildlife Refuge
This goes back to the question I posed earlier relating to pausing of the oil pipeline. The Department of State, under the direction of the new chief executive, has made this move. Is this a move the president, rather than the state, can make? That’s very questionable.
Added gender-neutral pronoun options to the online White House contact form
He can do what he wants here.
Fired Trump-appointed labor board general Peter Robb
Yup. Constitutionally he can fire whoever he wants to fire in the executive department. That was a power Madison specifically wanted left to the president’s discretion.
Established interagency group on societal impact of carbon pollution
Eh, no. There’s nowhere in the Constitution that the federal government is allowed to regulate private industry’s carbon pollution or any other effect on the environment.
Asked Environmental Protection Agency to immediately reconsider methane regulations
Well, this whole agency is unconstitutional, so any directives to it are, by default, unconstitutional.
Announced intention to revoke transgender military ban
Well, technically Congress raises and supports the army, navy etc but the president is Commander and Chief, so I’d say this falls within his jurisdiction.
Designated Domestic Policy Council Susan Rice to spearhead “robust, interagency” effort towards “rooting out systemic racism” in federal agencies.
However he wants to handle his federal agencies is up to him.
Proposed new Covid-19 national strategy
As long as it’s just suggestions, sure, he can suggest and propose all he wants.
Encouraged Congress to grant special waiver for Defense Secretary nominee Lloyd J. Austin III
Biden has asked Congress to: “to grant the exemption the retired four-star Army general needs from a law that bars officers recently on active duty from serving in the top Pentagon post.” Sure, this is fine.
Named acting Cabinet members until nominee’s slate can been confirmed
Yes. This is definitely within his Constitution powers.
Conclusion
I hope you can see the obvious issue here. No matter who gets in office, so much of what already exists is unconstitutional government behavior meaning that even if Biden wanted to act constitutionally, he couldn’t.
And who’s ultimately to blame for such the grossly bloated and unconstitutional monster of government?
The American people, friends. It’s the American people who demanded the government become this monster and it’s the American people who refused to know what the constitution says the government is actually meant to do.
We don’t blame the employee for wrong doing, we blame their employer for not holding the employee accountable to their job description and standard.
We are government’s employer, friends, and we’ve failed miserably at being a good one.
It’s about time we change that.
The Liberty Belle
Well without knowing the details of each executive order it is hard to determine the constitutionality by your extensive but vague check list. You are correct in your conclusion however that no matter who gets into office so much of what already exist is unconstitutional government behavior the new occupant is at a loss.
Therefore there shouldn’t be any synthetic outrage of “I’m SHOCKED,SHOCKED” by Biden following past presidents rescinding or writing executive orders on day one. This immediate erasing of prior administration accomplishments occurs with each new administration. If you find this worrisome then Presidents shouldn’t be so lazy about their legacy and go through Congress to make these into laws that either can’t be overturned by the next administration or can be challenged in court immediately. I agree the Administrative state should be curtailed, but conservatives have been paying empty lip service to that idea for decades just as they have been about the Department of Education being a federal office.
As far as President Biden joining any organizations or accords perhaps we can look to see what procedure Trump took when he talked to Putin or Kim? OH! that’s right he didn’t have anyone in the room with him and he refused to reveal the notes concerning what exactly was agreed upon. The president funding projects not approved by Congress? We could look at how Trump attempted to finance his wall diverting funds from OTHER DEPARTMENTS. Hmmm nothing but crickets heard from the right about either of those !
Why hasn’t any of this been done? The same reason Trump won’t be impeached by the Senate. Our political system has been designed and optimized over time to benefit solely the interest of our two parties and all of their associated industry allies not the American public. Current politicians see being in office as a malleable tool for their own personal gains and won’t make any moves that would jeopardize that stance.