Biden’s power likely to be tested in courts

  • Saturday, September 25, 2021 1:30am
  • Opinion

In his book “American Lion,” a biography of President Andrew Jackson, author/historian Jon Meacham describes Jackson’s philosophy of governing as presidential primacy. The occupant of the office, he felt, should be granted wide latitude and discretion in wielding executive authority.

As the only official elected by the nation at large, Jackson – the nation’s seventh chief executive – believed the office was not an arm of government; rather, it was the heart of government.

In the wake of President Biden’s extraordinary exercise of power – ordering some 100 million American citizens to accept vaccinations against the COVID-19 virus – Jackson’s theory will be tested.

After months of resisting mandating a mass vaccination program, Biden placed the nation on a wartime footing, ordering private sector employers of more than 100 people to require workforce immunizations or twice weekly testing for those who refuse. Violations would lead to fines of $14,000 per case, and those who reject the vaccine and the testing regimen could presumably lose their jobs.

The ink was still wet on his executive order when lawsuits were announced, arguing the president had exceeded his constitutional authority. Republican governors and members of Congress expressed outrage, crying that the president had trampled on constitutionally protected individual and privacy rights. Much of the backlash involved accusations that the president and, by extension, Democrats, were guilty of a concerted effort to accrue greater power and control over the American people.

Some were more cynical, arguing the administration was engaged in a “wag the dog” strategy, calling for a major policy step to distract attention from the disastrous withdrawal of the American military from Afghanistan, an issue that dominated news coverage for weeks and drove Biden’s public approval rating into the 40% range.

Positioning the president as a leader in fighting the most serious public health crisis in a century was the administration’s real goal, critics alleged, to head off becoming bogged down in a non-winnable debate over the botched withdrawal from Afghanistan. The president struck back swiftly, challenging opponents to “have at it” if they chose to proceed in court.

With the country experiencing 150,000 new COVID cases and 1,500 deaths a day, Biden concluded that dramatic action was crucial as the virus’ Delta variant overwhelmed hospitals and medical facilities. Biden accused governors and legislatures that prohibited mask wearing and vaccinations of a “cavalier attitude,” implying they were complicit in risking lives and blamed those who refused the vaccine for the out-of-control virus spread.

The public seems to agree with him, with a majority supporting a vaccination mandate for people in the workplace, on airplanes and public transportation, and in restaurants and entertainment venues. The Republican opposition strategy rests on preserving individual freedom to decide medical care, while the administration has framed the debate around government’s responsibility to act to protect public health. A presumed constitutional right to refuse a vaccine, the administration argued, does not translate into a constitutional right to expose others to a potentially lethal pathogen.

Biden, in effect, has asked the American people to choose between safety for themselves and their families and a desire to keep government out of their personal lives. The data has made the choice a bit easier: 40.8 million infections and 660,000 deaths in the United States since the pandemic’s onset – both the highest in the world.

Some Republicans believe the vaccination mandate will harm Democrats in the 2022 midterm congressional elections, that the principles of freedom will prove stronger than concerns over a highly contagious but treatable infection.

Jackson left office 184 years ago, and whether his governing theory will be vindicated will likely be decided by the 21st Century judicial system.

Carl Golden is a senior contributing analyst with the William J. Hughes Center for Public Policy at Stockton University in New Jersey. You can reach him at cgolden1937@gmail.

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