22 Jan Executive Power
“Leaders worldwide are centralizing power. That should not be allowed to happen in the U.S. where the Constitution provides for the devolution of power to State and local governments.” – The Lonely Realist
The 21st Century has seen more government, more intrusive government, and greater centralization of government power – a movement towards “Statism” (previously discussed by TLR here). The trend towards bigger government has morphed into conflicting ideologies about how democracies should function. At the extremes, there is rejection of minority rights, the Rule of Law, and tolerance of opposition, which during the 20th Century were the definitional cornerstones of democracy. The jarring 21st Century amalgamation of 200 years of agricultural, industrial, technological and biotechnological revolution have combined with the meteoric rise of social media – echo chambers for the spread of alternative realities – to stunningly separate the “haves” from the “have-nots.” Democratic America’s education-driven meritocracy has intensified those existing class divisions and, in the process, mainstreamed extremism. The highly-educated “haves” in America largely congregate in Big Blue Cities. Their rural American cousins view them as “elites” who are the beneficiaries of unfair economic and political advantages. Those advantages, they believe, are being used to repress America’s “Great Middle.” The less-well-educated and disadvantaged, those who are poorer as well as a fair proportion of the middle class, are manipulated by media and political operatives to feel all-the-more resentful as a result. The perception of unfairness thereby has been transmuted into reality, fueling grievance and tribalism. The division between those with more and those having less has widened further because of differences in geography. Americans who place a high value on tradition and homogeneity have been left behind by those who have embraced dynamism, diversity and change. Those whose skills enable their geographic and economic mobility have a different value system from those who are bound by necessity and identity to their traditional localities.
This 21st Century division is global. Examples in Europe include Britain’s Brexit, the rise of France’s National Front, Italy’s Five-Star Movement and Germany’s Alternative for Germany and is evidenced in far-right advances in Austria and the Czech Republic, Poland’s Law and Justice Party, and Viktor Orban’s capture of Hungary’s democracy. More expansively, China sees itself as the exemplar of centralized control. Similar perceptions of success by North Korea, Venezuela, Cuba, and Russia feed on Statism. The 20th Century-modeled democracies of India, Brazil, The Philippines and Turkey no longer are following American-defined democracy. They are following China’s autocratic example.
Statism – or “illiberal democracy” as Viktor Orban has labeled it – exalts the exercise of centralized, one-man rule over the liberal balance-of-power democratic model shaped by America. It rejects electoral democracy, finding support among extremists of the right and left. Although elections take place, the voting public is cut off from facts and fed an alternative reality. As George Orwell prophesized in 1984, “[I]f all others accepted the lie which the Party imposed – if all records told the same tale – then the lie passed into history and became truth. ‘Who controls the past’ ran the Party slogan, ‘controls the future: who controls the present controls the past.’” The failure of democracy to solve society’s problems has created a siren song for strong, centralized leadership. Promise the disadvantaged what they want, what every human being believes he deserves, and they will follow. Demagoguery naturally follows, constitutional limits on power are bypassed, the minority ignored, and elections manipulated to legitimize the consolidation of power in a single individual or group.
Is the U.S. to emulate centrally-managed China or autocratic Hungary?
The Supreme Court recently spoke to the question of the limits of Executive Power, addressing whether the Occupational Safety and Health Administration, an agency of the Executive Branch of government, could (1) compel employers with 100 or more employees to require their employees to be fully vaccinated or, alternatively, to submit a negative COVID test result on a weekly basis and wear a mask at work and (2) require vaccinations for healthcare workers at facilities that participate in Medicare and Medicaid. The goal of the first mandate was admirable – to reduce the adverse impact of COVID’s national health crisis by imposing vaccine requirements on 84 million Americans to prevent 6,500 deaths and 250,000 hospitalizations.
The Supreme Court based its analysis in both cases on America’s Constitution. To what extent can the Executive Branch take actions without empowerment by Congress? In deciding that Executive Power does not permit OSHA to impose workplace rules on private employers, the Supreme Court distinguished purely employment-related health concerns from those that affect the public at-large – that is, Congress had not delegated to the Executive the authority either to mandate non-work-related health rules for private employers or to declare a national health emergency. In staying enforcement of the private employer mandate, the Supreme Court thereby expressly limited Executive Power and, as a consequence, permitted State and local governments to adopt their own requirements (leaving open the question of the legal and Constitutional limits on those State and local governments). At the same time, the Court ruled that the Executive Branch does have the power to dictate the terms under which Federal Dollars are provided to Federally-funded facilities, upholding the President’s authority to mandate vaccinations for Federally-funded healthcare workers.
America’s Constitution was drafted to reconcile the interests of formerly-independent States having disparate populations, interests, geographies, resources and goals. The rationale for uniting them 230 years ago was common defense, ease of trade and commerce and the avoidance of duplicate governmental functions. Powers not explicitly granted to the Federal government were retained by the States. Unless America decides to amend the Constitution (which TLR previously suggested), it and only it provides the foundation upon which the country must operate.
The powers delegated by the States to the Federal government under the Constitution create a balance of power among the Executive, Legislative and Judicial branches of government. By bounding Executive Power, the Founders intended to avoid kingmaking. Presidential authority to declare war or take similar emergency action requires the approval of Congress (although Presidents have sometimes finessed Congressional approval). President Biden attempted to avoid Congressional authorization by pointing to OSHA’s authority to protect workers from workplace health hazards. That, however, had not been Congress’s purpose in delegating limited workplace authority to OSHA. Had the Supreme Court endorsed such an interpretation, it would have significantly broadened Executive Power, in effect granting the President the authority to over-broadly interpret laws whenever he (or she) determined it to be in the national interest. In using the OSHA pretext to exercise excessive Executive Power, President Biden exceeded his Constitutional authority. The Supreme Court foiled the attempt to move the country further towards such an imperial Presidency.
As TLR previously editorialized, American leaders for more than two decades have attempted to lead without pursuing policies that have united Americans. With few bipartisan achievements (a notable success being the Biden Administration’s 2021 infrastructure spending bill), not one of America’s recent Presidents has shown the ability to bring together a divided country. That failure of American democracy was once again made evident by President Biden’s attempt to further empower the Executive Branch by backhandedly declaring a national health emergency. Thankfully, the Supreme Court stymied such an expansion of Executive Power. State and local governments therefore have retained the responsibility to protect their citizens’ health. The inconsistency that results from the exercise of such States’ Rights may or may not be optimal, but it was precisely what America’s Founders intended. More importantly, they intended to prevent the arrogation of excessive power by a President.
Finally (from a good friend)
“When I return to public office, some people had better watch out!”