They know it's illegal. They just don't care.
The Biden Autocracy
The administration routinely disregards the Constitution, federal statutes, and republican norms.
When he introduced Kevin McCarthy as the new Speaker of the House, Democrat Minority Leader Hakeem Jeffries recited a series of mean-spirited comparisons for each letter of the alphabet. His first was a promise that Democrats would put “American values over autocracy.” In the midterm campaign, President Joe Biden claimed the election of Republicans would end democracy. Former President Barack Obama referred to a Republican victory as the end of “true democracy.”
Democrats support their demagoguing with a broad-brush smear that Republicans are racist, and the canard that voting rules equate to voter suppression. They charge, without evidence, that the Trump administration repeatedly exceeded its authority, and scapegoat all Republicans by the imprudent actions on January 6, 2021 of about one out of every 75,000 Trump voters.
Under cover of this onslaught, Biden has become the most autocratic president in at least 50 years. Justified by the fallacy that authoritarianism on behalf of so-called equity (i.e., racism) and other progressive causes is democratic (small “d”), and emboldened by the progressive echo chamber, the Biden administration pursues its left-wing agenda with smug indifference to bedrock rules of American jurisprudence and governance.
To suppress opposition to Biden’s unconstitutional and unlawful acts, government and other progressives seek to cleanse vocabulary and the public square of their utility, vilify and punish those who do not acquiesce, and foster corrupt (and unconstitutional) alliances with media and Big Tech that silence the opposition. Americans are justifiably afraid to speak out under the yoke of a weaponized Justice department, and intolerant school boards, universities, and professional organizations with the power to suspend and disbar, such as the American Medical Association and American Bar Association.
Article I, Section 3 of the United States Constitution requires the President to “take Care that the Laws be faithfully executed,” and in his oath of office, the president swears to do so. All federal statutes must comply with the U.S. Constitution. Executive orders and agency regulations must comply with both the Constitution and federal law. When President Biden instructs, authorizes, or merely permits the Department of Homeland Security (DHS) to disregard U.S. immigration law, or federal departments and agencies to hire personnel, enact policies, and grant funds based on race, or to collude with social media to deplatform, demonetize, and censor private speech, he violates this core presidential responsibility, among other core protections guaranteed by the Constitution and federal law.
On September 30, 2021, DHS Secretary Alejandro Mayorkas issued a memorandum that purported to exercise prosecutorial discretion by prioritizing apprehension and removal of “noncitizens who are a threat to our national security, public safety, and border security.” He then limited enforcement to only these categories, and in April 2022, the Immigration and Customs Enforcement (ICE) principal legal advisor directed ICE lawyers to dismiss most nonpriority cases, allowing at least an additional 700,000 illegal immigrants to remain in the United States.
8 USC 1226 and 8 USC 1227 set forth the laws applicable to the deportation of aliens. Section 1227 provides that “inadmissible” aliens “shall” be deported. Though appeals courts have held that even a statute that includes an absolute requirement is subject to some prosecutorial discretion, in general, prosecutorial discretion must be applied case-by-case, not as a blanket subterfuge to nullify a federal statute. In an effort to end-run this constraint, the Mayorkas and ICE memoranda profess to “authorize,” rather than “require” discretion by each prosecutor. Last summer, the U.S. Supreme Court refused to stay a lower court ruling that the Biden administration lacked the authority to terminate Title 42. States are suing to seek enforcement of other immigration laws, but their standing is unclear. The immigration crisis is Joe Biden’s unlawful plan to annul immigration laws to expand the potential Democrat base.
Marking an attempted massive expansion of executive power, in 2021, Biden ordered all government contractors employees be vaccinated and wear face masks, and coerced OSHA to order businesses with 100 or more employees to require vaccinations; and the Centers for Disease Control (CDC) ordered a moratorium on evictions. Biden previously acknowledged that he lacked the authority for the vaccine mandates, and admitted that the “bulk of constitutional scholars” would say the CDC action did not “pass constitutional muster.”
In September 2021, the Supreme Court upheld a lower court ruling vacating the CDC’s eviction moratorium for exceeding its authority. Four months later, the Court barred implementation of the OSHA rule, observing, “OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace.” Then, four federal Courts of Appeal largely rejected the mandate for federal contractors. In January 2023, the U.S. Court of Appeals for the Sixth Circuit unanimously characterized the President’s actions as the “anything goes” pursuit of a statutory purpose.
In the opening salvo in his war on fossil fuels, Biden suspended oil and gas leases on federal lands. In August 2022, the federal district court for the Western District of Louisiana held that Biden had exceeded his authority, and issued a permanent injunction staying the order in the 13 states that filed a lawsuit opposing it. Biden has slow-walked compliance, and imposed new conditions on drilling and processing, while concurrently depleting the strategic oil reserve, and blaming the oil industry for his unlawful actions.
The Taylor Force Act, enacted in 2018 by a bipartisan vote, generally requires the U.S.to cease funding the Palestinian Authority until the PA stops paying stipends to Palestinian terrorists and their families who target U.S. and Israeli citizens, takes steps to end violence, publicly condemns anyone who tries to kill an Israeli or a U.S. citizen, and fully investigates such crimes. The PA has made clear it will not comply. Nonetheless, consistent with anti-Israel sentiment among progressives, Biden lawlessly restored financial aid to the PA. Recent grants total about $1 billion.
Parents who objected to Covid shutdowns, Critical Race Theory, affirmative action, and schools’ secretly supporting LGTBQ priorities, are speaking out at school board meetings. To crush them, in September 2021, the White House secretly collaborated with the National School Boards Association (NSBA) to write a letter from the NSBA to Biden seeking Federal assistance to stop the parents. Five days later, Attorney General Merrick Garland issued a directive to the FBI and U.S. attorneys to meet with state and local leaders to develop strategies to address the purported threats of violence. FBI agents began investigating and questioning parents, even though the alleged violence was a matter for local police. These coordinated actions led to an apology from the NSBA, but Garland never backed down, putting DOJ’s lethal thumb squarely on the side of the administration.
The autocratic use of the DOJ is obvious in the marked difference between the responses to violence on the left and right. More than 900 arrests were made in the wake of the January 6 events, and hundreds more may face charges in the continuing DOJ investigation. In September, 20 FBI agents invaded Mark Houck’s home to arrest him, with weapons drawn, for a minor altercation during a pro-life protest. Houck’s lawyer had previously advised prosecutors that he would accept a summons for Houck to appear. By contrast, few steps were taken to protect conservative Supreme Court justices from pro-abortion demonstrators, prosecutors seldom pursued rioters and looters following George Floyd’s death, and the DOJ has been dropping charges against those it did pursue, including many of the violent rioters who attacked a Federal courthouse in Portland, and a man who tried to torch an NYPD cruiser.
Article I of the Constitution exclusively vests in Congress the right to appropriate funds and set the U.S. debt. During and after the 2020 presidential election, leading Democrats, including then-Speaker Nancy Pelosi and Biden, talked about seeking Congressional action to forgive student debt. Both acknowledged that the president lacked the authority to do so without Congressional action. As the midterm election neared and polls showed the potential for the Republicans to sweep the House and take the Senate, Biden bribed voters with more than $400 billion of federal funds by forgiving $10,000 in student debt for individuals with incomes below $125,000 or household incomes below $250,000, and $20,000 for Pell Grant recipients. After a bit of delay as lawyers researched who would have standing to challenge this colossal overreach, a federal district court promptly enjoined the plan, followed by the Eighth Circuit Court of Appeals. When the administration petitioned the Supreme Court to permit the program to continue, the Court declined to do so, leaving the Biden administration to defend the legality of its vote-buying scheme and how it squares with its commitment to fair elections.
In United States v. Alvarez (2012), the Supreme Court held that labeling speech as “false” or “misinformation” does not strip it of First Amendment protection. In Matal v. Tam (2016), the Court unanimously held there is no hate-speech exception. The Court has repeatedly applied the First Amendment prohibition on “abridging the freedom of speech” to executive actions. Chief Justice Warren Burger further warned that it is “axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.”
Despite being blatantly unconstitutional, at least 80 senior officials in 11 federal agencies, including the White House, DHS, CDC, and FBI, have participated in a concerted, until now largely covert, enterprise to suppress dissenting voices by colluding with, and coercing, social media companies into blocking, demonetizing, and suppressing views to which the administration objects, including so-called misinformation (views the Biden administration labels as false) and disinformation (views that are inconvenient for the Biden administration, or lack its preferred context). I wrote at length here about this fundamental danger to a free society.
As blatant and pervasive as the administration’s efforts to suppress opposing views, Joe Biden has reserved the place of honor in his pantheon of autocratic acts for his pervasive, all-encompassing racism.
More than once, the Supreme Court has opined that “distinctions between citizens solely because of their ancestry are by their very nature odious to a free people” (e.g., Rice v. Cayetano  and Hirabayashi v. United States ). Chief Justice John Roberts observed that using racial discrimination to undo racial discrimination doesn’t work; rather, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race” (Parents Involved in Community Schools v. Seattle School District No. 1 ). In Shaw v. Hunt (1996), the Court unambiguously explained: “Racial classifications are antithetical to the Fourteenth Amendment.”
Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, and national origin in federally funded programs, and Title VII does the same in private employment. The Civil Rights Act of 1866 prohibits the federal government from varying individual property and contract rights based on race or color.
Despite the unambiguous strictures of the Constitution, federal law, and Supreme Court precedent, on its first day in office, the president issued an executive order requiring a “whole-of-government” effort to embed diversity, equity, and inclusion (DEI) in all aspects of federal-government policies and American lives. As I explained last year, Biden then issued a second order on DEI in the federal workforce, a government-wide strategic plan, and a Gender Equity Plan that require government agencies to adopt plans to make personnel, policy, contracting, and financial decisions based on race and LGBTQI+ status.
The Biden administration’s 2021 American Rescue Plan (ARP) and trillion dollar infrastructure bill included billions to advance “equity” for restaurants, farmers, small businesses, homeowners, and construction companies. These benefits are unavailable to straight white males, and, often, other whites and Asian Americans. For example, ARP included $28.6 billion for grants to restaurants that the administration generally made available only to blacks, Hispanics, Native Americans, Asian Pacific Americans, and Asian Americans from the Indian subcontinent. Another act granted loan relief to minority farmers, excluding whites.
ARP prioritizes up to $785 million allocated for Covid-19 tests and vaccines for communities of color, including $35 million to hire racial minorities and LGBTQI+ individuals for the public health workforce without regard to whether they were the most qualified.
The administration has ordered that 11 percent of federal contracting dollars be awarded to small businesses owned by so-called marginalized minorities, and makes certain grants available only to “disadvantaged minorities” for medical research, infrastructure, student aid, and public housing.
Courts have consistently ruled against the administration’s racial agenda. In June 2021, the Sixth Circuit Court of Appeals declared unconstitutional the provisions of ARP for distributing COVID-relief by race and sex. An ARP program that allocates debt relief based on race and excludes white farmers has been enjoined by numerous courts, though the government has obtained stays in enforcement. More than a dozen other lawsuits are pending against Biden’s DEI programs
Yet, the Biden administration shows no sign of relenting. In accordance with Biden’s executive orders, at least 140 agencies have announced they are developing action plans to prioritize race in their mission.
We live in a democracy with three branches of government. When the executive branch knowingly disregards the Constitution and federal law the remedies are largely confined to expensive, protracted litigation, and impeachment, conviction, and removal, as provided for in the Constitution. Litigation is cumbersome, and Biden has generally evaded adverse decisions by slow-walking compliance, and issuing new, similar orders. Impeachment and conviction are impracticable given the small Republican majority in the House, Democrat control of the Senate, and the chilling fact that Kamala Harris is next.
With America’s elite institutions, the media, and a majority in the Senate aligning to excuse and even encourage growing autocratic overreach, including censorship and violent DOJ attacks on citizens exercising their Constitutional rights to petition Government and express their views, they create the circumstances in which progressive bogeymen may become real.
The American Mind presents a range of perspectives. Views are writers’ own and do not necessarily represent those of The Claremont Institute.
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