There was a great deal of criticism of President Joe Biden’s press conference from his refusal to take questions on the Afghanistan situation to his calling for the use of Civil Rights laws to oppose any state laws barring mask mandates. One line however received little attention but contained a breathtaking and troubling pledge: “If a governor wants to cut the pay of the hard-working education leader who requires masks in a classroom, the money from the American rescue plan can be used to pay that person’s salary 100%.” With that line, Biden pledged to indemnify people who violate state laws, including orders upheld by the courts. For the states, one can understand if the line between a federal subsidy and a federal accessory is difficult to discern.
Biden’s call to use civil rights laws to challenge anti-mask mandates was itself controversial. Indeed, it could create another major loss for the Administration. The Administration racked up an impressive array string of losses by the first six months in court. That dubious record has continued. In states with anti-mask mandates, the states are making a public health decision. Such decisions (like those made by the CDC) are generally afforded great deference from the courts. These states believe that the health and educational costs for children outweigh the risks for the virus. Many disagree with that judgment but it is a policy that applies to all children and families equally. That makes this a tough case to win.
Yet, that was not the promise that stood out in the press conference. Indeed, I assumed that I had misheard Biden in promising to pay teacher salaries and waited for transcripts. What the President is saying is that the federal government will indemnify teachers who knowingly violate state laws. I cannot recall any such prior presidential pledge to subsidize unlawful conduct and it raises serious questions over the use of federal funds to encourage violations of lawful state orders. Again, many disagree with these orders but they are issued under state laws affording governors this power.
It is not clear where the funds would come from to fulfill the pledge. Obviously states were given most of the pandemic funds. Biden may be suggesting that districts that received the money for school expenses and programs could use them for funding defiant teachers. Alternatively, there might be money available through the Department of Education.
I previously criticized how the Congress appropriated trillions of dollars for states during the pandemic without any meaningful limits. This has allowed states like Ohio to literally giveaway millions of federal dollars as part of a state vaccine lottery. President Biden has relied on the lack of limits in simply declaring that states should give people $100 for taking the vaccine.
Now this lack of any limits has allowed a president to pledge that he will pay the salaries of any teachers who knowingly violate their contracts and state law. Before we get to the legal and constitutional issues, Biden failed to put any practical limits on his pledge. He just told teachers to defy their state while assuring them that any lost wages will be indemnified. What if a teacher is suspended? Biden just promised to cover potentially years of lost wages. What if the teacher is fired? Will the federal government effectively pay a pension? Indeed, this pledge could create a perverse incentive for states to move to dock or suspend pay to pass such costs to the federal government.
Legally, the President just pledged to indemnify the violation of state law. It is an attempt to do indirectly but he cannot do directly. The pledge is meant to circumvent federalism barriers for federal mandates. Biden has gone back and forth on such mandates. He has asserted that he has the power to impose mandates on states and then claimed that he does not. Most recently, Biden then said that he might use federal authority to bar anti-mark mandates. The position of the Biden Administration on the issue is now completely conflicted and incoherent. The only certainly is a pledge to pay the salaries of any teacher suspended or fired for violating state laws on such mandates.
Biden’s pledge was made after the Texas Supreme Court upheld one of the most cited anti-mask mandates. So the President is responding by promising to fund violations of an order found lawful and constitutional by the highest court in the state (which is usually the final word on such issues even for the United States Supreme Court).
In Florida, Gov. Ron DeSantis adopted a rule that lets families opt out of locally ordered school mask mandates. In addition, the state board of education approved a policy to allow parents to use vouchers for their children to attend a different school if they encounter pushback on their refusal to use masks. Those orders have not been successfully challenged.
Biden is not alone in supporting such violations. Democrats in Washington have lionized Texas legislators who fled the state to prevent the passage of election reforms. These same Democrats have denounced the filibuster to block bills as a denial of democracy in Washington. The Texas order for the arrest of the legislators has been upheld by the Texas Supreme Court.
The Texas Supreme Court issued a temporary block on mask mandates in Bexar and Dallas counties on Sunday evening. Even though the decision was not a final ruling on the merits, most schools complied and suspended their mask mandates. However, a lower court judge effectively reinstated the Bexar mandate for public schools. District Judge Antonia Arteaga declared “I just wanted to apologize to all those parents, school administrators, the superheroes that we call teachers for what someone called the equivalent to a legal tug of war, unfortunately where our children are right in the middle.” There is no “tug of war” between a state supreme court and a lower court. The lower courts are supposed to carry out the rulings of the highest court in the state. Likewise, Dallas County Judge Clay Jenkins also claimed in a tweet that justices “did not strike down my face mask order.” It is true that the Supreme Court did not issue a final order but felt that there was sufficient support to lift the lower orders pending any decision. However, there are conflicting rulings on these mask mandates that the state courts are working through as part of expedited appeals.
The sharp public disagreements between these courts is unusual but will be quickly sorted out in the issuance of final orders. What President Biden is pledging is something entirely different. He is promising that, despite what the courts rule, the federal government will subsidize continued defiance of state law. Imagine if Texas pledged to subsidize any CDC employee who refused to carry out public health care orders or any border official who refused to release undocumented persons into the country. It would be immediately denounced as an attack on federal authority under the Constitution.
Biden’s pledge could create some new law. The Supreme Court has long held that it is unconstitutional to coerce or commandeer states to undermine their authority under federalism guarantees. Now a president is openly calling for the defiance of state laws by state employees and promising to financially support such violations. He is moving from commandeering state legislatures to commandeering state employees.
When he ran in 2020, President Biden promised that he would end Trump’s disrespect for the courts and return the country to “the rule of law, our Constitution.” Subsidizing the violation of state law is a curious way to fulfill that earlier pledge.