ALL I REALLY NEEDED TO KNOW ABOUT THE CONSTITUTION, I LEARNED IN FOURTH GRADE

Well, maybe that’s an exaggeration. I learned a lot teaching and practicing law, but my law student experience consisted mostly of left-wing theories I’ve had to unlearn.

But way back in the early 1950s, in Whittier Elementary School of Sioux City, Iowa, I sat in fourth grade under Miss Mildred Terhune, the strictest and best teacher I ever endured.

When she wasn’t disciplining me for whatever mischief I could concoct, she taught me the Bible (this was before Abington Township v. Schempp of 1963, not that she would have cared). She taught me American history. And she taught me the Constitution.

The Constitution, she said, establishes three branches of government. One branch (Congress) passes laws. Another branch (the President) enforces laws. And the third branch (the Court) interprets laws. When I wasn’t off daydreaming in Eidsmoeland, I listened, and sometimes I understood.

When a similar lesson came up in the schools of Pennsylvania and Delaware, Joe Biden must have been playing hooky. So was Kamala Harris – or maybe she had been sent to the principal’s office for excessive cackling. They seem not to have learned that administrative agencies under the Executive Branch of Article II are not to engage in legislation. They may with strict limitations adopt regulations for applying laws, but they may not pass laws; that is the responsibility of Congress.

Biden/Harris (and I use both names because Kamala Harris cannot evade responsibility for the Biden record, much as she would like to) and their Radical Left allies have, as of July 2, 2024, signed 139 executive orders, 190 presidential memoranda, 629 proclamations, and 129 notices. While the number of executive orders is fewer than those signed by President Trump, many of Biden’s orders expand federal power while Trump’s orders deregulated the economy and limited federal power. Furthermore, many of Biden’s presidential memoranda are really executive orders under the guise of memoranda, issued as memoranda so the Administration does not have to meet the legal requirements for adoption of an executive order, such as pre-publication and public comment. In so doing, these regulations violate the basic constitutional principle of separation of powers.

On no less than five occasions, the U.S. Supreme Court has struck down the Biden/Harris Administration’s regulations as usurping the authority of Congress:

1 - National Federation of Independent Business v. OSHA (2022). Biden and Harris wanted to force all Americans to undergo COVID-19 vaccination whether they wanted it or not and whether they needed it or not. It is questionable whether Congress has the authority to impose vaccination, but in any event, Congress chose not to do so. So Biden/Harris ordered the Secretary of Labor to adopt a regulation through the Occupational Health and Safety Administration (OSHA) requiring all employers with 100 or more employees “to ensure their workforces are fully vaccinated or show a negative test at least once a week.” This would have affected about 84,500,000 employees. The National Federation of Independent Business challenged this regulation in court.

The Supreme Court ruled that OSHA had been created by a 1970 Act of Congress, and therefore OSHA had only the powers delegated to that agency by Congress. Congress had delegated to OSHA the power to regulate “work-related dangers,” but COVID was not a danger specifically related to work. Therefore Biden/Harris and OSHA exceeded their authority by adopting this regulation. The Court therefore held that the mandatory vaccination rule was invalid.

Note: This issue in this case is not whether COVID vaccination is good or bad, effective or ineffective. The issue is whether an unelected administrative agency may force vaccination. The Court held that it may not.

2 - Next, in West Virginia v. Environmental Protection Agency (2022), the Supreme Court struck down portions of the EPA “Clean Power Plan” (adopted by the Obama Administration but defended by the Biden/Harris Administration) that mandated emissions reduction technology and, in some instances, shifting to solar and wind power. West Virginia and other States challenged this regulation in court, and the Supreme Court held that Congress had not delegated power to the EPA to promulgate or enforce regulations that impose such sweeping changes in power production. Because the EPA had exceeded the authority delegated to it by Congress, those regulations were held to be invalid.

Note again: The issue is not whether emissions controls or shifts to solar and wind power are good or bad. The issue, rather, is who has constitutional authority to mandate such changes. If any branch of government has this authority, it is Congress, and Congress has not delegated this authority to the EPA.

3 - The following year, the Court again slapped the hands of Biden/Harris in Biden v. Nebraska (2023). In a brazen attempt to buy votes, Biden/Harris adopted a student loan forgiveness plan. But once again, the Supreme Court invalidated the plan, noting that Congress had created the student loan program and had not authorized the Department of Education to forgive or modify loans except as provided int he Act. Because the Biden/Harris loan forgiveness program exceeded authority delegated to the executive branch by Congress, the program was held to be invalid.

Again: The issue is not whether student loan forgiveness is a good or bad idea. Many complained about the unfairness of requiring the taxpayers as a whole, many of whom could not afford to go to college and others of whom had already repaid their loans, should be required to subsidize these privileged few by paying their loans for them. The issue, rather, is who has authority to adopt a student loan forgiveness program – Congress, or the Biden/Harris Administration? Again, that is the authority of Congress.

However, Biden defied the Supreme Court with a slightly modified plan that will cost the taxpayers at least $870 billion. That plan, too, has recently been struck down by the Eighth Circuit, but the same day the Circuit made its decision, Biden/Harris announced another loan forgiveness program. We’ll see where that goes.

4 - In Loper Bright Enterprises v. Raimondo (2024), the Court dealt another blow to the Biden/Harris Administration, holding that courts rather than administrative agencies must interpret federal laws. Over the past century, administrative law has grown exponentially, with OSHA courts, tax courts, and other “courts” established by administrative agencies that operate under the Executive Branch rather than under the Judicial Branch. In its 1984 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. the Supreme Court boosted the power of administrative agencies, holding that courts must give deference to an administrative agency’s interpretation of an ambiguity in the law. This means that when an individual or a business challenges an administrative agency in court, the agency usually wins.

But in Loper the Court overruled the Chevron deference doctrine and held that administrative agencies are no longer entitled to such deference. Rather, courts must give more consideration to arguments raised by those challenging administrative interpretations.

Again: The issue is, who interprets the law – administrative agencies, or courts? The Constitution, Article III Sec. 2, says that is the duty of the courts. The Supreme Court agrees.

5 - Most recently, in the companion cases Department of Education v. Louisiana and Cardona v. Tennessee (2024), the Court has once again ruled that Congress, not the President or his agencies, has the authority to adopt laws. In 1972 Congress enacted Title IX, an education statute that prohibits sex discrimination in schools that receive federal funds. But the Biden Administration has adopted administrative regulations that essentially rewrite Title IX. The new rule redefines sex discrimination to include discrimination based on sexual orientation and sexual identification. This means public schools must allow biological males to dress and undress and shower in girls’ facilities, and much more.

Several states challenged this rule, saying it misinterprets Title IX which forbade sex discrimination relating to biological males and females, not those who self-identify with a different gender. Five federal district court judges ruled in favor of the states and enjoined enforcement of the Biden/Harris rule. And now, the Supreme Court has upheld their injunctions, saying Biden/Harris have failed to demonstrate that they have authority to change a law adopted by Congress.

Note: Congress, not the President, makes laws. President Biden and Vice-President Harris, what part of Article I do you not understand?

I’m not just splitting hairs. The separation of powers into legislative, executive, and judicial branches is essential to maintaining our constitutional system of limited government. Once one branch succeeds in usurping authority granted to a different branch, we are well on the path toward dictatorship. Biden/Harris, not Trump/Vance, are the real threats to democracy.

Back home in Sioux City, Whittier Elementary School closed a few years ago, and the old building is now used for apartments. Miss Terhune, God bless her, has gone home to be with the Lord. But the principles of government she taught us remain, because they are enshrined in the United States Constitution. There are three branches of government. Congress passes laws. The President does not. Nor does the Court.

Thankfully, the majority on the Supreme Court seem to understand that – at least for now. But who will appoint and confirm the next Supreme Court Justices?

Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu) and as Senior Counsel for the Foundation for Moral Law (morallaw.org). He may be contacted for speaking engagements at eidsmoeja@juno.com. Parts of this column are adapted from a similar column by Col. Eidsmoe published in 1819 News.

THE VIEWS OF SUBMITTED EDITORIALS MAY NOT BE THE EXPRESS VIEWS OF THE ALABAMA GAZETTE.