Democrats now control both houses of Congress and the presidency, and are eager to use this power to their advantage, as the ever-higher spending figures for ongoing COVID-relief talks have shown. Indeed, with few exceptions, congressional Democrats are unlikely to check President Biden; rather, most seem eager to indulge the radical impulses coming from their party’s Jacobin fringes. That means our primary and perhaps sole protection against federal overreach during the Biden years must come from outside Washington, in the form of state attorneys general.
Over the next four years, state AGs must work to block unconstitutional federal actions. And they have clear precedent on their side to do just that. State AGs worked to challenge much of President Trump’s agenda. Now that the shoe is on the other foot, many will work to challenge the excesses of the Biden administration.
And they will have a long list of targets. For example, under the moniker of “equity” (not “equality”), the Biden administration recently announced plans to engage in a highly racialized and arguably unconstitutional effort to distribute and withhold federal resources based on race. Biden’s insidious and pernicious racialized agenda focuses not on lifting everyone up but on tearing certain people and institutions down, contrary to the Constitution.
We’ve already seen the deleterious effects of such racialized policies in the COVID vaccine’s flawed distribution. Radicals pursuing a dangerous social-justice agenda have argued that the government should refuse to vaccinate older white people (who are at greatest risk of death because of their age) in favor of others because whites have “benefited from racism.” One “expert” on ethics and health policy at the Leonard Davis Institute of Health Economics stated: “Society is structured in a way that enables [white people] to live longer. Instead of giving additional health benefits to those who already had more of them, we can start to level the playing field a bit.” In other words, we should let older people die or contract the virus because they are white. That cannot possibly amount to “leveling the playing field” under law. Such a race-based focus violates the Constitution. State AGs must challenge it.
Free speech, electoral reform, policing, qualified immunity, and other issues are up for grabs as well. So too are unilateral actions. Consider Biden’s job-killing and constitutionally questionable executive order to revoke the permit for the Keystone XL Pipeline. That order, with doubtful due process, caused specific harm to workers and businesses who had relied on assurances that they would work on the project. According to one estimate, it will cost Wisconsin residents roughly 2,000 jobs and $2.5 billion–$3 billion in state revenue. And that’s just one state. Others will suffer, too. All this in pursuit of a far-left, Jack-and-the-Beanstalk-sized fantasy of immediately terminating the use of fossil fuels (which will still be transported, just now by means other than Keystone).
State AGs must also use the courts to force the president to faithfully execute federal law when he refuses. The Constitution declares that the president “shall take Care that the Laws be faithfully executed.” But what happens when a president or federal agency fails to implement federal law? If no one in the federal government will work to ensure faithful execution of the law, state AGs can sue in federal court to force them.
Biden already has refused to execute some law. Consider his decision to impose a 100-day “pause” on immigration removals. Despite the fact that federal legislation requires the removal of people who entered the country illegally (or who remained here illegally), Biden has decided on his own to “pause” deportations. That decision strikes many as a refusal to apply federal immigration law. The Texas attorney general already sued the president on these grounds and earned an injunction against the Biden administration for its failure to enforce immigration law.
For those who would oppose such actions, the response is clear. Other states have used the courts to compel the federal government to act. Massachusetts successfully sued the Bush administration for failing (as Massachusetts saw it) to enforce some aspects of environmental law. When presidents refuse to implement the law, state AGs can take them to court and force them to act.
Despite calls for unity, President Biden and congressional Democrats have unfurled a long to-do list that contains far-reaching, radical proposals. Congressional Republicans lack the institutional powers to do much to constrain them. But state attorneys general can still act as protectors of our constitutional liberties. Let’s hope they are up to the challenge.