King Biden and the Grand Vizier from Harvard

Wasn't it Donald Trump who was supposed to be threatening the constitutional order?

In my last post, I argued that we’ve developed a two-tiered justice system, in which ordinary people have to take their losses in court and adjust their behavior accordingly, but our Masters on the Left can just blow by their losses and, with utter impunity, keep right on keepin’ on. I noted two examples: President Biden’s determination to continue his gigantic loan “forgiveness” program still without the Congressional approval the Supreme Court held is constitutionally required; and his and his allies’ continued, if not even more aggressive, determination to persist in the matter of college admissions with anti-white racial balancing by hiding it or calling it something else (or some other subterfuge I haven’t thought of but they will).

It appears that I underestimated how far the Left wants to go and is urging Biden to go. Enter Prof. Mark Tushnet of Harvard (one of the two losing universities in the racial balancing cases). Harvard, you may recall, has one of the top law schools in the country, and Prof. Tushnet is one of its most prominent teachers. His piece on Balkanization starts this way:

Aaron Belkin and I have written the following open letter to the Biden administration urging that it endorse and take steps to implement popular constitutionalism as a response to what the President has described as "not a normal" Supreme Court. We urge readers to let the administration know in their own ways that reinvigorating the long and honored tradition of popular constitutionalism is both viable and urgently needed in today's circumstances.

Here is the start of the letter, with my occasional observations tossed in:

We urge President Biden to restrain MAGA justices immediately by announcing that if and when they issue rulings that are based on gravely mistaken interpretations of the Constitution that undermine our most fundamental commitments, the Administration will be guided by its own constitutional interpretations.

Translation: You used to believe that the judicial branch generally, and the Supreme Court in particular, had the last say on what the law is, and the executive branch was bound by that interpretation. That has become old fashioned thinking.

(Well, old fashioned unless we’re talking about the courts that tossed out Donald Trump’s election law suits — courts whose rulings were thought, by Tushnet and many others, to be so definitive that Trump’s continuing to dispute them was not merely wrong but insurrectionist).

We have worked diligently over the past five years to advocate Supreme Court expansion as a necessary strategy for restoring democracy. Although we continue to support expansion, the threat that MAGA justices pose is so extreme that reforms that do not require Congressional approval are needed at this time, and advocates and experts should encourage President Biden to take immediate action to limit the damage.

Translation: If Joe Biden can’t get Court packing through Congress — the most democratically responsive branch of government — well, OK, fine, we’ll just end run Congress. This will be done in the name of, yes, democracy.

The central tenet of the solution that we recommend—Popular Constitutionalism—is that courts do not exercise exclusive authority over constitutional meaning.

Translation: Joe, you can do what you want regardless of the Supreme Court if you just call it by some fancy, opaque name we at Harvard will invent for you. Something like “Popular Constitutionalism.”

In practice, a President who disagrees with a court’s interpretation of the Constitution should offer and then follow an alternative interpretation.

Then why bother to show up in court at all? If you’re going to do what you want regardless of how the court may rule, showing up to argue the case is a charade.

If voters disagree with the President’s interpretation, they can express their views at the ballot box. Popular Constitutionalism has a proud history in the United States, including Abraham Lincoln’s refusal to treat the Dred Scott decision as a political rule that would guide him as he exercised presidential powers.

Joe Biden can do this because, you see, he’s just like Abraham Lincoln! And a case holding that Congress should have a say on whether to spend a half trillion of taxpayer money on loan bailouts is just like Dred Scott.

Yikes. This guy is a Harvard professor, mind you. Entirely absent from his thinking is the Framers’ bedrock understanding that conflating the powers of the executive and judicial branches — that is, having the executive branch both decide what the law is and then enforce it as it cares to — is the fast track to tyranny. Most educated people know that by tenth grade.

We do not believe that President Biden should simply ignore every MAGA ruling.

That is the Left’s version of being moderate.

The President should act when MAGA justices issue high-stakes rulings that are based on gravely mistaken constitutional interpretations, and when presidential action predicated on his administration’s constitutional interpretations would substantially mitigate the damage posed by the ruling in question.

Translation: Joe, if you really, really need to shovel out this loan forgiveness money to buy off the youth vote in next year’s election — which is looking quite close right now — go ahead. We in academia and the MSM will have your back by assuring the public that the Court has adopted “gravely mistaken constitutional interpretations.” With the dumbed-down educational standards we’ve been shoving into high schools for the last 50 or 60 years, there’s a good chance they’ll believe it.

Same deal with continued race-doctored college admissions. We shouldn’t have that much trouble convincing people that “equal protection of the law” actually means “sending whites and Asians to the back of the line.” We’ve been doing it since at least the Seventies.

Such actions could help contain the grave threat posed by MAGA justices. For example, President Biden could declare that the Court's recent decision in the affirmative action cases applies only to selective institutions of higher education and that the Administration will continue to pursue affirmative action in every other context vigorously because it believes that the Court's interpretation of the Constitution is egregiously wrong.

OK, I give up. This is impossible to parody. Could anyone produce a clearer statement of the Left’s belief that there is no such thing as positive law and no such thing as an independent judiciary; there is only “these-are-my-preferences-and-so-this-is-what-we’re-going-to-do.” Didn’t that used to be known as the “Imperial Presidency”? And isn’t that precisely the behavior — the arrogance, the willfulness, and aggressive disregard for law — for which the Left wants to give Donald Trump about a hundred years in jail?

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I’ve only gone through about the first half of Prof. Tushnet’s letter. I might return to it after what, all things considered, should be a very refreshing lunchtime review of the Court’s recently concluded Term given by the superb Paul Clement.