In his final days in office, then-president Biden tried to amend the United States Constitution via executive fiat. “The Equal Rights Amendment is the law of the land,” he wrote. Then-vice-president Harris chimed in, asserting that the Equal Rights Amendment is now the 28th Amendment to the Constitution.
A few days later, President Trump attempted to stall the Protecting Americans from Foreign Adversary Controlled Applications Act, which effectively banned TikTok on January 19, via executive order. Trump’s executive order delayed the law’s implementation by 75 days, giving him time to float various ways to keep TikTok active in the United States.
What do these two actions have in common? For one thing, they’re each a gross violation of Constitutional norms. Constitutional amendments are not passed by executive fiat; and while Biden didn’t direct the leader of the National Archives to certify the amendment, it’s hardly a merely symbolic act. Leftist Senators and think tanks have jumped on Biden’s pronouncement to declare the Equal Rights Amendment effective law.
Across the aisle, laws that are passed by Congress cannot be overturned or amended by Trump’s executive order.
The danger of these two actions is not merely in their possibility to expand presidential power. If pushed, the Supreme Court would likely strike down both of these abuses of presidential authority, leaving the office of the presidency no stronger than it was a year ago.
The real danger of Biden’s and Trump’s actions is epistemic. A republic like the United States relies on stable rules for what leaders can and cannot do. When citizens know these rules, we are empowered to hold our leaders to account. But both of these actions threaten to undermine that stability and therefore our knowledge. Can a president ratify a Constitutional amendment with the stroke of a pen? What was once a very clear question with a very clear answer now seems fuzzier, with leading Democrats insisting that yes he actually can. Can a president amend a law via executive order? Again, the legal answer is very clear; but we as a country are just a little bit less sure of that answer than we were a few days ago.
In The Origins of Totalitarianism, Hannah Arendt wrote that, “The ideal subject of totalitarian rule is not the convinced Nazi or the convinced Communist, but people for whom the distinction between fact and fiction (the reality of experience) and the distinction between true and false (the standards of thought) no longer exist.” Or as then-Senator Ben Sasse (R-NE) put it in 2017, “We have a risk of getting to a place where we don’t have shared public facts. A republic will not work if we don’t have shared facts.”
Neither Trump’s nor Biden’s executive overreach will single-handedly push us into the place that Arendt described, of a meek and disoriented populace who no longer knows truth from fiction. But each pushes us just a little bit towards that destination. The more our elected officials brazenly flout Constitutional norms, the less certain we the people will be of those norms. Both men are lying about what the founding charter of the United States allows them to do, which is dangerous because lies from such powerful men tend to be believed.
Biden’s and Trump’s actions are also disrespectful to the American public. Both men seem to think that we care more about optics than reality, more about short-term gains for our team than about our long-term Constitutional order, and more about winning than about respecting the norms and laws of our great nation. That’s insulting, but in the long run it’s also dangerous. We the people rise or fall to the level that our leaders hold us to. When we are treated like hyper partisans who cannot distinguish a real law or Constitutional amendment from executive fiat and who don’t care as long as our politicians are helping our team, we stoop to meet those low expectations.
So what can we do about the problem? At heart, the trend I described above is bidirectional. We rise or fall to the level that our politicians call us to, but they also rise or fall to our level. Or to put it another way: we get the leaders we deserve. If we want better leaders, we have to improve ourselves.
One way to do this is to think more long-term. When we’re considering whether or not to take a certain political action (be it to vote for a certain politician, or even whether to praise or condemn their actions on social media), we should look at the question through the lens of where we want our great country to be in the next 50 or 100 years. Our country will likely be in much better shape if we respect Constitutional norms now, than if we continue to cheer every politician who chips away that those norms in ways that deliver us short-term victories.
We often think of the Constitution as an inviolate bulwark against tyranny, but judge Learned Hand warned in 1944 that an over-reliance on the Constitution represented “false hopes.” Why? Because the truth is that laws are downstream from culture. As Hand put it, “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.”
Politicians aren’t ultimately constrained by the law; they’re constrained, in the final analysis, by what behaviors we the people will allow. In the past few weeks, both Biden and Trump have bet that the American public cares more about short-term political victory than about the legality of how those victories are achieved. It’s important for the long-term health of our republic that we call their bluff.
