By Sarah Isgur
Monday, January
20, 2025
Four years ago today, Joe Biden took the oath of office
and made
a series of promises: “I will defend the Constitution. I will defend our
democracy. I will defend America.” Those words came just weeks after the
January 6 riot at the Capitol, but the idea that Biden, the Washington
mainstay, would restore the “norms” so often flouted by his predecessor was
arguably the very reason American voters elected him in the first place.
As he’s scrambled to try and salvage his legacy in recent
weeks, Biden has returned to those themes. “In the past four years, our
democracy has held strong,” he said in his farewell address last week. “And every day, I’ve kept my
commitment to be president for all Americans.”
No. His “aww shucks,” doddering nature is effective, but
Joe Biden’s legacy is not the Restorer of Norms. He is leaving office quietly
having caused more damage to the rule of law than arguably any single one of
his predecessors.
But what about Andrew Jackson?
Following the Worcester v. Georgia decision that
acknowledged Native American tribes as distinct political entities,
Jackson—responsible for the Trail of Tears—purportedly said, “John Marshall has
made his decision; now let him enforce it.” Well, after the Supreme Court struck
down Biden’s student loan “forgiveness” plan as
unconstitutional in Biden v. Nebraska, the president tried again. “Early
in my term, I announced a major plan to provide millions of working families
with debt relief for their college student debt,” he bragged.
“The Supreme Court blocked it. But that didn’t stop me.”
But what about Abraham Lincoln?
Abraham Lincoln was one of the greatest presidents in
American history—if not the greatest—but he did occasionally overreach as the
Civil War raged, suspending the writ of habeas corpus multiple times, ignoring
a ruling from Chief Justice Roger Taney about the
decision, and ordering the arrest of opponents in Congress and in the media.
But then again, President Biden encouraged his Department of Justice to
prosecute his political opponents, declaring
from the steps of Marine One that he hoped the January
6 committee “goes after [Trump administration officials defying subpoenas] and
holds them accountable criminally” and that his own DOJ would bring charges
against them. In April 2022, the New York Times reported that Biden had grown “frustrated” with Attorney General Merrick
Garland’s “deliberative approach” and that he had “confided to his inner circle
that he believed former President Donald J. Trump was a threat to democracy and
should be prosecuted.” Once Trump was eventually indicted, Biden taunted
his opponent about his limited ability to campaign
against him: “I hear you’re free on Wednesdays.”
But what about Woodrow Wilson?
After all, President Wilson infamously resegregated the
federal government and enforced the Sedition Act of 1918 to jail thousands of
his critics. Hard to beat that one. But Biden did try his best to silence his
critics—or at least erase their criticisms—by unleashing his staff to threaten
and bully social media companies in an effort to prevent Americans from
straying from his political orthodoxy. Meta CEO Mark Zuckerberg told
Joe Rogan last week that “these people from the Biden
administration would call up our team and, like, scream at them and curse” to
take things down that were, in fact, true. As Supreme Court Justice Samuel
Alito recounted
in Murthy v. Biden:
For months in 2021 and 2022, a
coterie of officials at the highest levels of the Federal Government
continuously harried and implicitly threatened Facebook with potentially
crippling consequences if it did not … crack down on what the officials saw as
unhelpful social media posts, including not only posts that they thought were
false or misleading but also stories that they did not claim to be literally
false but nevertheless wanted obscured.
But what about Franklin Roosevelt?
After the Supreme Court struck down several of his New
Deal initiatives, a frustrated FDR threatened to add justices to the court with
the Judicial Procedures Reform Bill of 1937. Feeling pressured by far-left
critics of the court, Biden created
a Presidential Commission on the Supreme Court of the
United States after he agreed that the court was “getting out of whack.” The Commission’s
report studied Democratic legislation to pack the
court and strip it of jurisdiction to hear cases that
could undermine his administration’s priorities. Threatening to destroy the
political independence of the Supreme Court unless its justices rule the right
way didn’t work for FDR, and it didn’t work for Biden either.
But what about Barack Obama?
Despite his constitutional duty to “take care that the
laws be faithfully executed,” President Obama put out memos announcing his
decisions not to enforce laws he disagreed with—like marijuana and immigration enforcement. So did Biden, making
clear last week his administration would not enforce
the TikTok ban that he himself signed into law just months earlier—not
because he disagreed with it, but because he didn’t want to be on the hook
politically for shutting down the app that is so popular with young people.
But what about George W. Bush?
Bush famously signed the Bipartisan Campaign Reform Act
into law while publicly
stating the legislation presented “serious
constitutional concerns.” But Biden repeatedly told the American people that he
did not have the power as president to issue an eviction moratorium, disburse blanket “forgiveness” of student loan debt, or tackle climate
change—only to forge ahead with all three and criticize the Supreme Court
in the most strident and partisan terms when justices struck them all down.
And of course, but what about Donald Trump?
There is no minimizing how Trump handled his 2020
election loss—attempting to undermine and overturn the results to stay in
power. Biden, to his credit, has done nothing of the sort this time around,
inviting Trump to the White House and emphasizing the importance of a peaceful
transfer of power. But that all played out against the backdrop of Biden trying
to rig an election in his own way, hiding his deteriorating mental acuity from
the American people—and even leaders of his own party—in an effort to secure
reelection based on a facade. In a recent interview
with USA Today, Biden conceded that he “[didn’t] know” if he had the
“vigor” to serve another four years.
He did this by hiding his condition and blackballing
anyone who questioned his competency. Trump infamously attacked special counsel
Robert Mueller throughout the course of the Russia investigation. And after
special counsel Robert Hur released
his report declining to charge Biden for the
mishandling of classified documents—in large part because Hur did not believe a
jury would convict a “sympathetic, well-meaning, elderly man with a poor
memory”—Biden accused Hur of callously asking him when his son died. “How in
the hell dare he raise that?” the president bellowed,
allowing his staff and block Hur from various employment opportunities. But in
actuality, it was
Biden who brought up Beau—not Hur. More to the point,
the transcript also showed Biden asking his attorney “in 2009, am I still vice
president?”
Trump has also been undermining the rule of law for
years, repeatedly and emphatically deriding the justice system as “rigged.” And
yet, how else can we describe Biden’s handling of his son’s criminal
prosecution this past year? He pointed to Hunter’s indictment as proof that
Americans should trust our legal system, even saying after his son’s
conviction—related to a firearm
restriction Biden supports—that he would “abide by the jury decision” and
“not pardon him.” Yet weeks after the election, the pardon came
nonetheless—not because he was a devoted father but because he’d “watched
[his] son being selectively, and unfairly, prosecuted.” He claimed “no
reasonable person” could conclude this wasn’t a politically motivated
case—despite the fact that Hunter was prosecuted by Biden’s own Justice
Department.
It was all a lie. As the judge overseeing the tax case
pointed out, “The Constitution provides the President with broad authority to
grant reprieves and pardons for offenses against the United States … but
nowhere does the Constitution give the President the authority to rewrite
history.”
Biden’s attempt
to rewrite history with respect to the Equal Rights
Amendment (ERA) last week is a fitting capstone on his lawless presidency.
Congress first sent the ERA to the states for ratification in 1972 with a
seven-year deadline, but it didn’t receive the requisite support until
January 2020—decades beyond the congressionally mandated deadline and after
several original states had voted
to de-ratify the amendment.
The archivist of the United States didn’t accept the
belated ratification as a legitimate development, and neither has any federal
court that has considered the question. The late Supreme Court Justice Ruth
Bader Ginsberg (one of the earliest and strongest proponents of the ERA) didn’t
accept it, and neither did Joe Biden for the first 1,457 days of his
presidency— until it became a question of his legacy. Then, he decided
he could simply “affirm what [he] believe[s]” and
announce that the Constitution had been amended, concerns about precedent be
damned.
***
As we enter a second Trump administration, there is
plenty of concern about the institutional havoc the president-elect could
wreak. Might he try to run
for an unconstitutional third term? Ignore
the Supreme Court if it declares his immigration
enforcement actions to be unlawful? Threaten
TV networks with onerous regulations and
investigations if they air or refuse to censor criticisms of his
administration? Refuse to
enforce a law passed by Congress that criminalizes
fraudulent memecoins or appropriates money for military equipment to Ukraine?
But while these folks were worried about what violations
Trump might commit, Biden was actually committing them. He may
have been less upfront about his lawlessness than his predecessor, but he did
significant damage to our constitutional order and the rule of law in the name
of appeasing political supporters and attacking political opponents.
That’s Biden’s legacy—a quiet lawlessness that should
live in infamy.
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