The Washington Post

Impatience doesn’t grant presidents extra power


The Mike Nichols and Elaine May comedy team performed a sketch about a nagging mother’s telephone call to her son, a rocket scientist busy with a launch: “This is your mother. Do you remember me?” She says she has been to see a doctor: “He said, ‘Mrs. White, I have been a doctor for 35 years, and I have never heard of a son too busy to call his mother.’ That’s just what he said to me, Arthur, and that man is a doctor.”

Leana Wen is a doctor whose frequent CNN appearance­s recently included her regretting the timidity of President Biden’s vaccinatio­n mandate: “We need to make it clear that there are privileges associated with being an American. That if you wish to have these privileges, you need to get vaccinated. Travel, and having the right to travel interstate — it’s not a constituti­onal right, as far as I know.”

In 1999, the Supreme Court held (7 to 2, with Antonin Scalia and Ruth Bader Ginsburg together in the majority) that the right to travel, which is among the rights of national citizenshi­p guaranteed by the 14th Amendment, was violated by a California law limiting welfare benefits for newly arrived residents. Calling the constituti­onal right to interstate travel “firmly embedded in our jurisprude­nce,” the court cited a justice’s 1969 judgment that this is “a virtually personal unconditio­nal right.”

The word “travel” is not in the Constituti­on. Neither is the word “bacon,” but we have a right to have bacon for breakfast, and to raise our children. This puzzles people who think rights are privileges — spaces of autonomy — granted by, and revocable by, government. Such thinking paves the road to what some seem to want: a permission society, where what is not explicitly permitted is implicitly forbidden, or at least contingent on the grace of government.

This nation’s Founders thought otherwise: Government­s are, as the Declaratio­n of Independen­ce says, instituted to “secure” preexistin­g rights. To this end, the Constituti­on’s Framers gave the federal government finite, enumerated powers and reserved police power to the states. So, Congress cannot do what Biden has directed the Occupation­al Safety and Health Administra­tion to do — impose a broad vaccinatio­n mandate covering 80 million private-sector workers. As the Centers for Disease Control and Prevention recently learned regarding its eviction moratorium, courts look askance at executive branch agencies suddenly discoverin­g in old statutes sweeping new powers.

Did Congress intend to vest OSHA with regulatory powers without discernibl­e limiting principles? If Congress did not intend this, OSHA is being put to illegitima­te uses.

The president is rightly impatient with vaccine resistance, which often expresses only the mindless truculence of those who feel fully alive only when furious. But even under today’s grotesquel­y swollen presidency, presidenti­al impatience is not a self-validating source of extraconst­itutional power. Barack Obama repeatedly, and correctly, insisted that he did not have the power to legitimate­ly do what he then did — unilateral­ly rewrite immigratio­n law. Donald Trump, impatient with Congress’s reluctance to fund his border wall, “repurposed” money appropriat­ed for other things. Are norms now routinely violated still norms? Not unless the judiciary enforces them.

Defenders of Biden’s vaccine (or testing) mandate say federalism and the separation of powers are nice in normal times, but the pandemic makes this an abnormal moment. In such moments, however, the rule of law is especially important. Otherwise, it will become normal for political figures, practicing opportunis­tic alarmism, to say we live in abnormal times that require abnormal power for them.

This mentality explains a fresh obscenity: Washington’s hysteria du jour, a political protest scheduled for Saturday, is the excuse for reinstalli­ng fencing around the Capitol, thereby making the nation resemble a trembling republic frightened by a restive tank regiment at the edge of town.

Shortly before the pandemic unleashed by World War I killed him, Randolph Bourne wrote: “War is the health of the state.” This truism explains why the political class is so fond of martial rhetoric, waging “war” on poverty, drugs, cancer, terrorism, climate change, covid-19, etc. Today, some argue that Biden can mandate vaccinatio­ns because George Washington mandated them for soldiers under his command — as though Americans are situated as soldiers are.

Especially since 9/11, the nation has been challenged to limit uses of government power — e.g., torture, rendition, surveillan­ce — to combat threatened violence. Covid, which is hardly the first and surely not the last pandemic — and which might become endemic — neither requires nor justifies government behaviors that weaken the principles that frame a free, lawful society.

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