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The Pandemic of Executive Overreach Comes to an End. When Will the Next One Begin?

This article was originally published by Mitch Nemeth at The Mises Institute. 

Over the past few decades, the executive branch of the federal government has taken an increasingly autocratic approach to governing. Past presidents have unilaterally attempted to bypass Congress due to partisan gridlock and the inevitable tug-of-war involved in governing a nation of 330 million people. President Joe Biden has governed in a similar fashion, regardless of progressive anger at him for not “doing something.”

The covid-19 pandemic prompted public acceptance of a similar phenomenon at the federal level and across a majority of the fifty states. Most state executive branches responded to the pandemic with unilateral action. The federal executive branch was constrained in its approach to the pandemic because states possess more power than the federal government in responding to declared emergencies. Congress could have passed laws granting explicit statutory authority to the president, but it has in recent decades preferred to defer its governing authority to the president.

Republican senator Ben Sasse summarized this phenomenon back in 2018: “The real reason [Congress] punts most of its power to executive agencies is because it is a convenient way to avoid responsibility for controversial and unpopular decisions. If your biggest long-term priority is your own re-election, then giving away your power is a pretty good strategy.” As Rich Lowry writes in National Review, Congress has been a complicit if not “eager participant in its own neutering.” This principle has been especially true throughout the pandemic.

Many of the federal government’s covid-19 pandemic measures could have been statutorily authorized by Congress. However, Congress has been eager to shift its responsibilities, and thus accountability, to the president. Congress has delegated authority to the executive branch for decades, but today’s Congress is plagued by loyalty to a political party over loyalty to the institution. As Lowry states, “What’s new is that partisanship has created a loyalty for members of Congress that transcends their attachment to Congress itself, while more and more members consider their office merely a platform to get attention.”

In keeping with the executive branch’s encroachment on legislative activities, the Biden administration directed numerous executive branch agencies to adopt contentious nationwide policies. Often, these directives stretched the various agencies’ statutory authority. Since President Biden’s inauguration, the Centers for Disease Control and Prevention (CDC) and the Department of Labor’s Occupational Safety and Health Administration (OSHA) have issued widely applicable edicts, most notably a sweeping eviction moratoriumvaccine mandates, and mask mandates. Many states and localities separately introduced their own measures to supplement federal policy. While many, if not most, of these covid restrictions have ended, it is important to understand how the executive branch lost these three major legal disputes.

The CDC’s Eviction Moratorium

In March 2020, Congress passed the CARES Act. The CARES Act provided aid to individuals and businesses adversely affected by covid-19, but buried within the bipartisan spending package was a 120-day moratorium on eviction filings. The Trump administration, however, did not allow the moratorium to expire. Instead, the administration’s CDC “instated on September 4 a moratorium on evictions for nonpayment of rent for tenants,” which was set to expire on January 1, 2021. The Biden administration continued to extend the CDC’s eviction moratorium until the Supreme Court ruled against the measure’s legality on August 26, 2021.

In criticizing the CDC’s legal authority, a majority of the Supreme Court asked, “Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable?” The Supreme Court separately noted that the CDC’s temporarily expanded statutory authority “is a wafer-thin reed on which to rest such sweeping power.” The CDC’s eviction moratorium is just one example of an executive branch agency overstepping its statutory authority.

Vaccine-or-Test Mandates

Throughout the early months of the Biden administration, the administration and the corporate media pressured all eligible Americans to receive the covid-19 vaccines. As Americans ignored the Biden administration and public health “experts,” the White House became increasingly disdainful of those who were skeptical of the covid-19 vaccines. While a slim majority of eligible Americans opted to voluntarily receive the covid-19 vaccines, the minority was labeled as “anti-vax” despite their variety of reasons for not getting vaccinated, including medical conditions, vaccine hesitancy, and the lack of rigorous long-term study of the vaccines’ side effects. The Biden administration continued to grow enraged that nearly half of eligible Americans ignored their expertise.

In September 2021, the White House announced a “vaccine or test” requirement through legal maneuvering. The most wide-ranging requirement came from OSHA’s emergency temporary standard (ETS), which required employers to determine the vaccination status of each employee, obtain acceptable proof of vaccination status, and maintain records of each employee’s vaccination status. The ETS required each unvaccinated worker to test for covid-19 weekly. At that time, an unvaccinated worker was defined as an individual without two doses of the mRNA vaccines (Moderna and Pfizer) or one dose of the Johnson and Johnson vaccine; the ETS was purposefully silent on those who had natural immunity (immunity from previous exposure to the virus).

As expected, special interest groups immediately challenged the OSHA ETS in court. The legal challenges ended on January 13, 2022, with the Supreme Court ruling in favor of the National Federation of Independent Business over OSHA. The Supreme Court found that “permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

Mask Mandates

On January 21, 2021, President Biden issued Executive Order 13998, which directed executive branch officials to require individuals to wear masks while engaging in domestic and international travel. On February 3, 2021, the CDC published its mask mandate for domestic and international travel, bypassing the Administration Procedures Act notice and comment procedures. The CDC defended its actions by claiming “it would be impracticable and contrary to the public’s health” to delay the mandate.

In March 2022, the Senate voted 57–40 to “overturn a federal requirement that passengers on airplanes and other modes of public transportation wear masks.” However, the Senate failed to reach the sixty-vote requirement, so this measure failed. In April 2022, the CDC’s interstate travel masking requirement stood as the last visible relic of the federal government’s covid-19 regime. The Biden administration publicly supported the continued enforcement of this requirement and renewed the mandate for one more month on March 18.

On April 18, 2022, district judge Kathryn Kimball Mizelle struck down the CDC’s mask mandate. Progressives were quick to deride Judge Mizelle and her ruling. Dr. Anthony Fauci’s criticism of this ruling resembled that of a high priest: “the principle of a court overruling a public health judgment by a qualified organization like the CDC is disturbing in the precedent that it might send.”

After two years of governance by public health “experts,” courts have finally found the courage to confront emergency power abuses at the federal level. As Justice Neil Gorsuch wrote, “Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.”

Conclusion

After more than two years of a constitutional sabbatical, federal courts have overturned the most egregious abuses of covid-19 emergency power. Unfortunately, the president remains undeterred from implementing his party’s preferred policies through unilateral action. Progressives in Congress have pressured President Biden to unilaterally cancel student loan debt. His colleague Representative Jim Clyburn explained an approach that mirrors the Biden administration’s guiding legal principle: “So my whole thing is, use your executive authority and let the courts have at it.” President Barack Obama governed in a similar manner, “I refuse to take no for an answer…. When Congress refuses to act … I have an obligation as president to do what I can without them.”

Given the Biden administration’s legal track record, one would expect their legal approach to change; however, this seems unlikely, given the executive branch’s trajectory in recent decades. “Do what you want until the courts say it’s illegal” is not a legitimate or democratic governing principle in a twenty-first-century constitutional republic. The most obvious solution to this crisis of legitimacy is for Congress to regain its mantle as the legislative body and to accept accountability for contentious policy issues.

Unfortunately, there are no signs that Congress is willing to take any positive steps in that direction. Both major political parties have been vocal opponents of the imperial presidency, but “when the need to build a legislative consensus does come up, [presidential] candidates simply promise to [implement policy] themselves.” While the pandemic of covid-related executive overreach has come to an end, it is time for freedom advocates to tackle the greater legitimacy crisis at hand.

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