TURLEY: Despite Being Told Presidents Lack the Authority, Will Biden's Challenges of the Constitution be Allowed?

White House press secretary calls it a “pathway” – after admitting “we don't have the power to inform each American you need to be vaccinated.” 

By Jonathan Turley

WASHINGTON, D.C. (Texas Insider Report) — 
President Joe Biden has long pledged to “build back better,” but in the last few months it's become clear his "transformational" plans go well beyond mere infrastructure. They extend to our very structure of government. What is most striking about these claims is that Biden and his aides have indicated they know they are operating outside of Constitutional Limits.

From "national mandates" in the pandemic, to abortions to elections to rents, Biden is seeking to federalize huge areas of Constitutional Law and displace State Law.

Not since John Adams and his Federalist Party has the country faced such a fundamental challenge to our system of federalism. And, some of the recent claims made by Biden would make even Adams blush.

Take the recent controversy over the vaccine mandate.
Biden and aides – like Chief of Staff Ronald Klain – claimed before the inauguration that he would impose "national mandates" in the pandemic, only to be told that a president lacks such authority over the states.

Biden, Speaker Nancy Pelosi (D-CA,) and other Democrat leaders then denied that they would impose such mandates, often acknowledging the Constitutional Limits placed on presidents.

But then came last week, when Biden suddenly announced he would impose a national vaccine mandate through the Occupational Safety & Health Administration (OSHA).

Klain admitted that the OSHA Rule was, or would be a mere “workaround” of the Constitutional Limits imposed on the federal government. White House press secretary Jen Psaki preferred to call it a “pathway” – after admitting “we do not have the power to inform each American you need to be vaccinated.” 

Whether a “workaround” or a “pathway,” the move would allow the federal government to dictate public health measures in every state – a claim that will face major federalism challenges in court.

Under this interpretation, OSHA could impose a "Federal Mandate" for any measure – on possible any public "safety" issue – 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 move came on the same day Attorney General Merrick Garland announced an equally sweeping claim of federal jurisdiction over abortion rights in challenging the Texas law.

Garland announced that the federal government would appear in court not as an amicus (or friend of the court,) as has been its practice in past cases. Instead, it will sue directly as a party in interest because the law is viewed as countermanding a "constitutional right." Indeed, Garland claimed such authority in defense of any constitutional right that could be abridged by any state law.
In his remarks, Garland indicated that the government would claim federal preemption, in whole or in part, over the abortion area. That is another sweeping claim that could make many judges uneasy.

The Supreme Court has always recognized state authority in this area – the question is where to draw the line. The filing will add a new basis for pro-life challenges based on federalization.

The filing against the Texas law followed a call from Biden for a “whole of government response” that was obviously directed at the Justice Department, and its not the first pressure exerted by the White House on agencies for such legal claims.

Previously, Biden called for the Centers for Disease Control & Prevention (CDC) to impose a "nationwide moratorium" on the eviction of renters.
Biden admitted that his White House Counsel told him that move was likely unconstitutional. But despite that overwhelming opinion, he listened to Professor Laurence Tribe at the urging of House Speaker Pelosi.

Despite the Biden's and the Democrat's pledges to return to a respect for the “Rule of Law” after the Trump Administration, Biden even openly suggested that they could use the litigation to get as much money out of the door as possible before being barred by the courts.

They lost in court, as many of us predicted, but Biden wanted this small agency to effectively dictate rental payments across the country.

These moves follow new evidence that the Biden Admin had concluded that a Farm Debt Law was unconstitutional before putting it into the Pandemic Relief Bill.

There has been little media attention to the impressive litany of losses of the Biden Administration in court – or the open pressure by the White House on these agencies. The media covered such pressure extensively during the Trump Administration, and legal experts objected that the Trump White House was attacking the independence of the Justice Department and other agencies.

In these measures, Biden is demanding dubious federal actions that are being promptly taken by his agency heads – all with poor outcomes for the executive branch.

The move on abortion is particularly reckless. The Texas law is already being challenged, so there is no need for a "federal action" from Attorney General Garland. However, the White House wanted such a filing for political reasons – and Garland relented.

In so doing, he risked potentially damaging new precedent on federal jurisdiction in a lawsuit that is redundant and unnecessary.

Clearly, the Democrat Party has now emerged as the new Federalist Party, and as president, Joe Biden is seeking to outdo John Adams in supplanting State Authority with an over-reaching Federal Authority.

Roughly 200 years ago, the Federalist Party faded from political dominance in the United States, and with it went Adam's vision for a dominant federal government.

It is not an act of "building back," it is breaking down a system designed to protect liberty by preventing the concentration of authority in our Federal Government.

The question now is whether this “workaround” of the Constitution will actually work with the courts.

Professor Jonathan Turley is a nationally recognized legal scholar who has written extensively in areas ranging from Constitutional Law, to Legal Theory, to Tort Law. He appears regularly as a legal expert on all of the major television networks, as well as in national publications such as The New York Times, The Washington Post, USA Today, the Los Angeles Times and The Wall Street Journal.