The enduring importance of our Constitutional order becomes more apparent by the day

American democracy can be messy and confusing, but that’s only because it’s working as intended:  Ensuring every decision of the government is subject to scrutiny, helping to keep each branch of government within the bounds of their authority, and that no single person ever is vested with unlimited authority or power.  What other alternative is there in an imperfect world?

American democracy is messy, at times confusing.  It moves in fits and starts.  It can seem slow, sometimes glacial.  No one ever seems to get everything they want and everything is subject to a maze of legal boundaries and challenges across three separate but equal branches of government and fifty states with their own unique powers and, at times, competing interests, internal factions, widely divergent ideologies, and leaders.  Further, each of those fifty states has their own Constitution complete with their own conceptions of the legislative, judicial, and executive branches, each with their own unique laws, regulations, and powers reserved for government officials.  The result is an almost endless web of power, interests, and competing demands, both from within the government and the diverse people the government serves.

There are moments when none of it makes any sense, like the entire thing was a massive Jenga puzzle, assembled haphazardly, and about to topple over, never to rise again.  This, however, is completely by design.  These are intentional features of our system of government, not bugs or defects.  Indeed, in my opinion, one shared by many others, this counterintuitive structure that looks like poorly controlled chaos at times, is the key reason why America is the longest standing Constitutional Republic in the known universe and no other government we have ever encountered has persisted so long, through so many changes, and still continues to operate according to something resembling its original conception.

The separation of powers is one of the most critical aspects of this enterprise.  In the United States, power is sliced, diced, and shared across both the federal, state, and local governments, with different powers reserved for each branch and level of government accompanied by different procedures and rules to exercise those powers.  This seemingly convoluted design serves several key purposes.  First, every government body is a check on every other body.  The courts are normally seen as the final arbiters of the law and that is true to some extent, but the actual organization is much more complicated.  The courts themselves are organized locally, on a state-level, and federally with differing venues depending on the nature of the case and the law in question.  In addition, the executive and legislative branches at all levels continually debate the meaning and application of laws, passing changes to the laws themselves, or their enforcement.  The result is that no single body at any level has a monopoly on either making law, enforcing law, or adjudicating disputes over the law.

Second, no single person, at any level of the government, from a mayor, up to and including the President has unfettered authority, free from any check or balance.  Not only do they exercise their power within a limited sphere, but practically every decision they make, can and will be tested, both legally and politically.  Legally, the courts can overturn laws passed by the legislature and executive orders.  Politically, the legislature can pass laws overruling the executive or the executive can veto laws passed by the legislature, both procedures require large majorities to accomplish in most cases, meaning massive opposition can result in a change of direction regardless of who the executive in question maybe, even a popular President of the United States can be overruled.  This, of course, is precisely as it should be as no single person is infallible or has a monopoly on the truth, everyone can be wrong with crushing consequences or, even worse, can be corrupt with infernal purposes and designs.

Few things have brought the importance of this order to more prominence than the pandemic, when for various reasons and with various reasonings, the government has asserted expansive new powers at almost every turn.  Last week, President Biden issued sweeping new mandates for vaccines, using Occupational Safety and Health Administration (OSHA) rules to force all companies in the United States with 100 employees to ensure their associates are fully vaccinated.  In response, even The New York Times noted “Biden Test Limits of Presidential Power in Pushing Vaccinations,” writing that the President’s “far-reaching assertion of executive authority…relies on a set of complicated legal tools that will test the power — and the limits — of the federal government to compel personal health care decisions.”  Before the final executive order was even issued, Republican governors were already planning legal challenges.  For example, South Carolina Governor Henry McMaster said he will fight “to the gates of hell to protect the liberty and livelihood of every South Carolinian.”  South Dakota Governor Kristi Noem promised a lawsuit, as did many others.

At issue is whether or not OSHA rules can be used in this manner, creating essentially a backdoor to a Federal vaccine mandate without Congress passing legislation.  Believe it or not, the entire case is likely to come down to a few words buried in the bill that created OSHA back in 1971.  OSHA has the power to create an “occupational safety and health standard” provided the standard is “reasonably necessary or appropriate to provide safe or healthful employment or places of employment.”  And so, despite that legal scholars tend to agree that the Federal government doesn’t have the authority to pass a direct vaccine mandate without legislation from Congress, many now think OSHA has this same power and must’ve had it all along.  The New York Times quotes Donald B. Verrilli, Jr., the Solicitor General under President Obama.  He explains, “The constitutionality of this regulatory effort is completely clear.  In a situation like this, one where we’re in the middle of a public health emergency, courts recognize that they lack the institutional competency to make judgments about what’s in the best interest of public health and safety.”  Others disagree, of course, disagree, such as Jonathan Turley.  He explained, “Under this interpretation, OSHA could impose a federal mandate for any measure that impacts workers, including public health measures not directly linked to a given workplace or job. That may be more of a sticker shock for some on the federal bench, including some justices.”

The courts will ultimately decide, but for our purposes here, there are a couple of relevant points.  First, the Federal government has never attempted this type of mandate, or this rationale for a mandate before.  The Supreme Court has upheld state and local level vaccine mandates under police powers, but even the most relevant ruling was way back in 1904.  The vaccine at issue protected against the plague of smallpox, which killed about a third of people infected.  It is completely unclear whether or not the courts today, which have vastly different conceptions of the First Amendment and the equal protection clause, will be as amenable to a mandate this sweeping without any legislation from Congress.

Second, President Joe Biden and his surrogates like Press Secretary Jen Psaki have previously argued that the Federal government does not, in fact, have this power.  On December 4, 2020, then President-elect Biden said, “No, I don’t think it should be mandatory. I wouldn’t demand it to be mandatory.”  He added, “Just like I don’t think masks have to be made mandatory nationwide.  I’ll do everything in my power as president of the United States to encourage people to do the right thing and when they do it, demonstrate that it matters.”  Ms. Psaki was more clear just this summer, saying it’s not the federal government’s role.   Third, Chief of Staff Ron Klain admitted the OSHA move was essentially a regulatory trick, retweeting that it was the “ultimate work around” after MSNBC anchor Stephanie Ruhle originally wrote, “OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations.”

I understand that many people support President Biden’s efforts and believe these mandates are necessary regardless of how they are supported in our Constitutional order, but, wherever you stand on the issue, the preservation of the order itself is important.  You might trust President Biden to do the right things for the right reasons, but if that’s the case, there’s a good chance you wouldn’t have trusted President Trump in the same position.  This prompts one of the most important questions underlying almost everything about our Constitutional order:  How can anyone one person be imbued with the power to mandate the behavior of hundreds of millions of their fellow citizens?  If they can mandate vaccines by finding the “ultimate workaround” in a decades old agency, what can’t they mandate?

Lest you think I am picking on President Biden, he’s certainly not the first Chief Executive to suddenly discover unused authority in older legislation, nor is he the first to claim he lacks a certain authority and then decide that, actually, he’s had it all along.  Last summer, President Trump worked around Congress to extend increased unemployment benefits during the pandemic.  Before Trump, President Obama infamously claimed he couldn’t pass immigration reform without Congress and then issued sweeping orders in precisely that regard.  Nor is this completely modern phenomenon.

Almost 70 years ago, President Harry S. Truman was faced with a nationwide steel production strike in 1952 that threatened the war effort in Korea and decided his authority as Commander in Chief allowed him to seize the steel mills outright.  At first, he was hesitant to make such a bold move, doing everything possible to avoid the strike, but then felt he had no choice except to act or risk American security.  He issued Executive Order Number 10340 at 10.30 PM on April 9, less than two hours before the strike would take effect, to seize the steel mills and have the government operate them as long as the strike continued.  There is no doubt in my mind that Truman only made the decision because he felt there were no other options and the result of a strike could be disastrous.  He was acting in what he truly believed to be the best interests of the country with no ulterior motives.

The steel companies sued to block the order, and the issue ultimately came before District Court Judge David Pine.  In his ruling, he declared: “There is no express grant of power in the Constitution authorizing the President to direct this seizure. There is no grant of power from which it reasonably can be implied. There is no enactment of Congress authorizing it.”  In its brief in support of the seizure, government lawyers claimed they do “not perceive how Article II (of the Constitution) can be read so as to limit the Presidential power to meet all emergencies,” and that whether or not an emergency is occurring is “not subject to judicial review.”  Judge Pine responded to both points, “To my mind this spells a form of government alien to our Constitutional government of limited powers. I therefore find that the acts of defendant are illegal and without authority of law.”  The Supreme Court upheld Judge Pine’s ruling on June 2, 1952.

The Father of the Constitution, James Madison once wrote “if men were angels, no government would be necessary.”  The Constitutional order he helped design and shepherd into being is based on the assumption that politicians, for reasons of good or ill, will almost always work to increase their power.  It is the rare ruler that accepts limits on their own ambition and it should not be surprising that Presidents of both parties, going back decades, even centuries, have repeatedly found powers in their office that never before existed.  As a result, the Constitutional order can be messy and confusing, but that’s only because it’s working as intended:  Ensuring every decision of the government is subject to scrutiny, helping to keep each branch of government within the bounds of their authority, and that no single person ever is vested with unlimited authority or power.

What other alternative is there in an imperfect world?

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