Not long after the ratification of our Constitution, the great Justice Joseph Story marveled “How easily men satisfy themselves that the Constitution is exactly what they wish it to be.” The Constitution is designed to be a type of waltz with a three rather than six-step pattern in our tripartite system of government. Many today however treat it more like an interpretative dance, an invitation for expressive individual moves. Indeed, in the last few months, President Joe Biden often seems to be dancing alone. The improvisational element to constitutional interpretation reflects more than mere political opportunism. It reflects a crisis of faith on the Constitution Day.
Most politicians enter office sounding like ballroom dancers and end up as break dancers. When you are out of office, the structural limits of the Constitution are hugely important as you seek to force the other party to justify actions or seek compromises. Once in power, the shield afforded by the Constitution seems more like a shackle. Every president in my lifetime has found achieving his agenda at some point to be more important than complying with the Constitution. Whether it is the circumvention of Congress or launching unilateral wars, presidents dance to their own tune to the gleeful applause of their supporters.
Take the series of losses recently by the Biden Administration in areas like immigration. The Administration lost a number of unilateral moves by Biden on the basis of the Administrative Procedures Act (APA), a law requiring the government to consider objections and countervailing facts before making final decisions. For example, in terminating policies like Trump’s “Remain in Mexico” policy, the Supreme Court ruled that Biden acted in violation of the federal law. It should sound familiar. During the Trump Administration, Democrats denounced the failure by Trump to satisfy the same statute. At the time, I noted that Democrats would likely find themselves on the wrong side of that precedent when the next Democrat came to power. Right on cue, Biden immediately to did exactly what Trump did in discarding the federal law. Indeed, Biden has been accused of pushing knowingly unconstitutional provision like one in the pandemic relief bill declared to be racially discriminatory.
The greatest departure from the constitutional framework came recently in Biden’s call for the Centers for Disease Control and Prevention (CDC) to reimpose a nationwide moratorium on the eviction of renters. The CDC previously claimed the authority to control all of the rental agreements across the country under a vague federal law. So, according to this interpretation, a small agency could cite a concern over a possible disease in taking over a huge part of our economy without any consultation, let alone approval of Congress.
Not surprisingly, a majority of justices said that no such authority existed. In its 5-4 decision in Alabama Association of Realtors v. Department of Health and Human Services, the Supreme Court kept the CDC moratorium in place. However, five justices indicated that the CDC order as unconstitutional. Yet, Justice Brett Kavanaugh who agreed that no such authority existed, still voted with the majority because the CDC’s original order was about to expire anyway. He allowed the law to simply expire and thereby enable an “additional and more orderly distribution of the congressionally appropriated rental assistance.” Putting aside the curious position of Kavanaugh, five justices clearly stated that no authority existed for the CDC to issue the order and it was only allowed to expire because it was about to expire anyway.
When Democrats pushed Biden to reinstate the moratorium despite the views of the majority of the Court to the contrary, Biden was told by his White House Counsel and an array of legal experts that the order would clearly be found unconstitutional. That is when Speaker Nancy Pelosi reportedly told Biden to just call Harvard Professor Laurence Tribe, who predictably gave Biden the green light.
In one of the most chilling press conferences by a president, Biden admitted to the press that it was still probably unconstitutional but he hoped to get billions of dollars out the door before the new order could be struck down. When confronted on the fact that five justices already said that the CDC lacked this authority, Gene Sperling, a senior advisor to Biden, declared his willingness to act without legal authority is a measure of his empathy and greatness: “This is a president who really understands the heartbreak of eviction. The reason why he is pressing and pressing, even when legal authority looks slim, is because he wants to make sure we have explored every potential authority.”
Despite Tribe’s assurances, the order was declared invalid.
Indeed, on this Constitution Day, it seems like the Constitution itself and its supporting institutions are under unprecedented attack. When the Court refused to enjoin the Texas abortion law, various figures immediately renewed the call for court packing in install an instant liberal majority. While the number of justices is not set by the Constitution, the move reflects the same impatience with constitutional provisions or institutions that stand in the way of political demands.
The Constitution remains a leap of faith for citizens. We agree to live within its confines despite the fact that it may slow or frustrate our efforts to achieve our immediate goals. It has served us well through rageful times and reckless leaders. It was designed by Madison to be idiot-proof and every president in my lifetime has put that design to its test.
Not much has changed over the centuries. The Constitution was written not just for times like this, it was written in times like this. The Federalists and Jeffersonians were actually trying to kill each other. Yet, here we remain. We are no more united than we were. Indeed, the only essential thing we have in common is the Constitution itself. It is a covenant of a common faith that unites us and protects us . . . despite our best efforts to the contrary.