Jonathan Turley: Our Constitution is under unprecedented attack
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Shortly after our Constitution was ratified, Grand Justice Joseph Story marveled “how easily men make sure the Constitution is exactly what they want it to be.”
The Constitution is designed to be a kind of waltz with a three-step model rather than a six-step model in our tripartite system of government. Too many, however, treat it today more as an interpretive dance, an invitation to expressive individual movements. Granted, in recent months, President Joe Biden often seems to be dancing alone.
When presidents are removed from office, the structural limits of the Constitution are extremely important as you seek to force the other party to justify actions or seek compromises. Once in power, the shield offered by the Constitution looks more like a shackle.
Every president in my lifetime has found it more important to achieve an agenda at some point than to comply with the Constitution. Whether it’s bypassing Congress or launching one-sided wars, presidents dance their way to the cheerful applause of their supporters.
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Take the Biden administration’s recent spate of losses in areas like immigration. The administration has lost a number of unilateral actions from Biden on the basis of the Administrative Procedures Act (APA), a law that requires the government to consider objections and compensatory facts before making final decisions.
For example, by ending policies such as President Donald Trump’s “Stay in Mexico” policy, the Supreme Court ruled that Biden had acted in violation of federal law. This should sound familiar to you.
Under the Trump administration, Democrats denounced Trump’s failure to uphold the same status. At the time, I noted that Democrats would likely find themselves on the wrong side of this precedent when the next Democrat came to power. Just at the right time, Biden immediately did exactly what Trump did in rejecting federal law. Indeed, Biden has been accused of knowingly pushing unconstitutional provisions.
The most egregious departure from the constitutional framework came recently in Biden’s appeal to the Centers for Disease Control and Prevention (CDC) to reimpose a national moratorium on tenant evictions.
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The CDC had previously claimed the power to control all rental contracts across the country under vague federal law. So, according to this interpretation, a small agency could worry about possible illness by taking control of a huge part of our economy without any consultation, let alone congressional approval.
It is not surprising that a majority of judges are of the opinion that such an authority does not exist. In its 5-4 decision in Alabama Association of Realtors v. Department of Health and Human Services, the Supreme Court upheld the CDC’s moratorium. However, five judges said the CDC order was unconstitutional.
Yet Judge Brett Kavanaugh, who agreed that such authority did not exist, still voted with the majority as the CDC’s original order was about to expire. It allowed the law to simply expire and thereby allow “further and more orderly distribution of appropriate rent assistance by Congress.”
Kavanaugh’s curious stance aside, five justices made it clear that the CDC had no constitutional authority to issue the order and that it was only allowed to stay in place because it was about to ‘expire anyway.
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When Democrats pushed Biden to reinstate the moratorium despite the court majority opinion to the contrary, Biden was told by his White House lawyer and an array of legal experts that the order would be unconstitutional. That’s when President Nancy Pelosi reportedly told Biden to just call Harvard professor Laurence Tribe, who predictably gave Biden the green light.
In one of a president’s scariest press conferences, Biden admitted to the press that it was probably still unconstitutional, but he hoped to get billions of taxpayer dollars before the new order could be rescinded. .
Faced with what five judges have already ruled, Gene Sperling, Biden’s senior adviser, said Biden’s willingness to act without legal authority was a measure of his empathy and greatness: “He’s a president who understands really the heartache of the eviction. The reason he insists and insists, even when legal authority seems slim, is because he wants to make sure we have explored all potential authorities. ” Despite Tribe’s assurances, the order was declared invalid.
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On Constitution Day, it appears that the Constitution itself and its supporting institutions are under unprecedented attack.
When the Supreme Court refused to outlaw Texas abortion law, various prominent figures immediately renewed their calls for the courts to be formed to install an instant liberal majority. Although the number of judges is not fixed by the Constitution, this decision reflects the same impatience with constitutional provisions or institutions which obstruct political programs.
The Constitution remains an act of faith for the citizens. We accept to live within its limits despite the fact that it may slow down or frustrate our efforts to achieve our immediate goals.
It has served us well through times of rage and reckless leaders. It was designed by James Madison to be fool proof – and every president in my life has put this design to the test.
Little has changed over the centuries. The Constitution was not only written for times like this, it was written at times like this.
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The Federalists and Jeffersonians were in fact trying to kill each other. Yet we stay here.
We are no more united today than we were then. But the only essential thing that we have in common is the Constitution itself. It is the alliance of a common faith that unites and protects us, despite all our efforts to the contrary.
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