There was an interesting moment last night when President Joe Biden appeared on “Jimmy Kimmel Live!” for his first network interview in 118 days. When Kimmel pushed Biden on the possibility of issuing an executive order on gun control. After all, Kimmel said, “Trump passed those out like Halloween candy.” Biden said that he did not want “to emulate Trump’s abuse of the constitution” and “pass those out like Halloween candy.” It was an ironic statement from a president who has racked up an impressive array of losses in the courts which have found that he has repeatedly disregarded constitutional limits. There is an advantage to arranging to be interviewed by a comedian rather than a reporter. There was no push back from Kimmel on a statement that is dramatically at odds with the President’s actual record in the courts.
The president declared “I have issued executive orders within the power of the presidency to be able to deal with everything having to do with guns, gun ownership… all of the things that are within my power.” He then added “what I don’t want to do, and I’m not being facetious, I don’t want to emulate Trump’s abuse of the constitution and constitutional authority.”
It was a jarring claim for anyone who has followed the losses in the last two years by the Biden Administration in court.
President Biden has arguably the worst record of losses in the first two years of any recent presidential administration. This year, the Supreme Court on Thursday blocked the Occupational Safety and Health Administration’s (OSHA) vaccination mandate for businesses with 100 or more employees. That followed statements by his Chief of Staff Ron Klein that they had found a “workaround” of the Constitution in such executive orders.
The President has shown a similar disregard on whether measures are constitutional. That was the case when Biden called for the Centers for Disease Control and Prevention (CDC) to impose a nationwide moratorium on the eviction of renters. Biden admitted that his White House counsel and their preferred legal experts told him that the move was likely unconstitutional. Despite that overwhelming opinion, he listened to Professor Laurence Tribe at the urging of Pelosi. Despite the pledge to return to a respect for the “rule of law,” Biden openly suggested that they could use the litigation to get as much money out the door as possible before being barred by the courts. Nothing could be more damaging to the litigation and the federal courts quickly rejected the CDC and Tribe arguments. The Supreme Court ruled 6-3 that the order was unconstitutional.
These losses began to pile up soon after the President took office.
In Washington, D.C., this year, a federal court vacated the results of the Department of the Interior’s Bureau of Ocean Energy Management’s lease sale rule. In January 2021 President Biden signed Executive Order 14008, which stopped new oil and gas leases on federal lands and waters.
In Wisconsin, a federal court stopped Biden’s controversial $4 billion race-based federal relief program for farmers after finding that he was engaging in systemic racial discrimination. The court found that “the only consideration in determining whether a farmer or rancher’s loans should be completely forgiven is the person’s race or national origin.” As such, farmers were found to be “experiencing discrimination at the hands of their government.”
A court in Texas found that the Biden administration engaged in systemic discrimination to implement COVID-19 relief for American restaurants by giving preference to women, minorities and “socially and economically disadvantaged” people.
In Louisiana, a federal court enjoined the administration from carrying out its halting of gas and oil leases, finding that Biden’s unilateral action violated the separation of powers under the Constitution.
A federal judge in Florida ruled against the administration and held that the CDC cannot dictate rules for cruise ships. The court found the administration is again exceeding its constitutional authority. The appellate court later rejected a motion to lift the injunction.
Litigation is continuing in some of these areas. Indeed, the Biden Administration was enjoined by a court in its effort to end the Trump “Stay in Mexico” policy. That issue, however, is now before the Supreme Court.
President Biden is not the first president to over reach on executive authority. Indeed, I was also critical of litigation under the Trump Administration. Yet, this record suggests that President Biden has not “emulated” Trump’s record but may have actually exceeded that record. Trump ultimately went to the Supreme Court and prevailed on some of these issues like his travel ban.
The point is not that the Biden Administration lacks good-faith arguments in some of these areas but rather Biden seems unaware or unconcerned about a litany of losses in the courts. Yet, his administration has been repeatedly found to have violated constitutional rights ranging from equal protection to separation of powers.
Even though his party controls both houses of Congress, President Biden has yielded to demands for excessive executive orders. The result has been a series of losses that established damaging precedent for his successors. While there also have been successes in courts, Biden’s losses will have a lasting impact on his legacy and his office. It is certainly nothing to boast about with Jimmy Kimmel, but it is also nothing to ignore.