President Joe Biden is scheduled to give a speech tonight in front of Independence Hall in Philadelphia, where he will call his political opponents a threat to democracy and urge everyone to vote for Democrats instead.
If Biden wants to see a real threat to democracy, he need only look in the mirror. That’s because it is the unlawful executive actions by recent presidents, including his own student loan amnesty announced last week, that represent the real threat to the constitutional order and the rule of law.
Article I of the Constitution, which was debated and signed in the building from which Biden will speak tonight, vests all legislative powers of the federal government in Congress, not in the executive branch. If a president of either party wants to use the power of the federal government to wipe away the debt of millions of borrowers, just to pick an issue at random, that president must be able to point to a specific act of Congress that gave him or her that power. Moreover, Article IV specifically gives Congress the “power to dispose of and make all needful rules and regulations” respecting government property, such as student debts.
Biden’s defenders disingenuously claim that the Higher Education Relief Opportunities for Students Act of 2003 gives him the power to cancel permanently the student debt of all borrowers affected by a declared national emergency. But that legislation was passed to provide relief to borrowers who missed work after being called to military service during a national emergency.
This is very similar to former President Donald Trump’s attempt to build a wall on the southern border by redirecting funds that Congress had allocated to other programs after he declared a national emergency at the U.S.-Mexico boundary.
Whatever powers Congress has delegated to the president in cases of national emergency — and Congress has delegated far too much power to the presidency during emergencies — both Trump’s wall and Biden’s loan amnesty vastly overstepped their legitimate executive powers. Trump’s wall was blocked by a federal court, and if a plaintiff with standing can be identified for Biden’s loan amnesty, that action will likely be blocked as well.
The most egregious recent abuse of executive power, however, was former President Barack Obama’s unilateral rewriting of the nation’s immigration laws in the middle of his presidential reelection. On a case-by-case basis, presidents have chosen to “defer action” against certain migrants otherwise slated for deportation. What had never been done before Obama was to identify an entire class of migrants for special deferred status, which, on top of everything else, included both legal protections and work permits.
Obama’s 2012 Deferred Action for Childhood Arrivals was an unprecedented expansion of presidential power that has since served as a beacon for migrants around the world, inviting them to risk their children’s lives by sending them to the United States. Thanks to Obama’s abuse of power, migrants know that their children will not only be allowed into the country but will eventually be allowed to stay permanently by some other president’s executive amnesty.
Obama’s illegal DACA program caused an incalculable loss of faith in the rule of law. There are few policies more important to national sovereignty than its control over who is allowed to enter the country. Obama claimed, against laws written by Congress, that he had full authority to decline to enforce the law for entire classes of people. That Trump tried something similar with his border wall should surprise nobody.
Until presidents like Biden, Trump, and Obama are forced to drive within the lines, the presidency itself will continue to be the biggest threat to democracy in America.
