The Sticky Spaghetti School of Constitutional Law
Politicians are throwing laws at the wall and seeing what sticks.
"The bulk of the constitutional scholarship says that it's not likely to pass constitutional muster" is not a sentence you want to hear from a president launching an economywide initiative that will directly impact millions of Americans. Yet President Joe Biden said exactly that in 2021 when he announced plans to continue a Trump-era Centers for Disease Control and Prevention (CDC) initiative giving public health bureaucrats control over evictions nationwide.
The Court was not amused by Biden's brazenness, and—just as it had clearly signaled it would do when it had earlier considered the expiring eviction moratorium—it ruled that it was not, in fact, within the power of the executive to give the CDC control of the contractual arrangements between every American renter and landlord.
Biden is simply the latest to experiment with an increasingly popular governing philosophy that involves throwing laws and edicts at the wall like so much spaghetti. (As is his wont, Biden diverged from his predecessors primarily by saying the quiet part slightly louder.) This sticky spaghetti system involves knowingly attempting unconstitutional action and then waiting to see just how mad the Supreme Court gets.
The Court, it turns out, can get pretty mad.
In Biden v. Nebraska, the case that considered the president's splashy plan to forgive $430 billion in outstanding student loan debt, Chief Justice John Roberts' June majority opinion declared: "People think that the President of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress." A clear, strong statement—and not Roberts' own words. Roberts was quoting then–House Speaker Nancy Pelosi (D–Calif.), who was quite correct when she explained the limits of presidential power in a 2021 press conference. Biden knew better. His whole party knew better. He did it anyway.
Roberts went on to explain, this time in his own voice, what should have been obvious: "Our precedent—old and new—requires that Congress speak clearly before a Department Secretary can unilaterally alter large sections of the American economy."
***
Unfortunately, this messy and destructive pattern repeats, with different degrees of hypocrisy and/or public acknowledgment, across administrations: Biden's vaccine mandate, Donald Trump's bump stock ban, Barack Obama's unauthorized drone strikes, Trump's funding of the border wall out of military appropriations, indeed nearly every facet of immigration policy.
Advocacy for restraint on the latter came from an unlikely quarter in 2019. "President Obama said that he did not have the right to sign DACA [the Deferred Action for Childhood Arrivals program], that it will never hold up in court," tweeted Trump. "He signed it anyway! If the Supreme Court upholds DACA, it gives the President extraordinary powers, far greater than ever thought."
As usual, Trump's characterization wasn't precisely accurate. But Obama did say in response to calls for immigration reforms in 2010: "I am not king. I can't do these things just by myself." And in 2012, while reserving the right to do temporary law enforcement prioritization, he denied "the notion that I can just suspend deportations through executive order." Shortly thereafter, overly ambitious enforcement decisions by his Department of Homeland Security about those very policies were struck down by the courts.
Trump's enthusiasm for a constrained executive was far from consistent, of course. He also claimed Article II of the Constitution gave him "the right to do whatever I want as president" and it took three drafts and three trips through the judiciary before one of his own signature immigration policies—a ban on people traveling from a list of Muslim-majority countries—managed to pass muster with the Court.
***
When the president sets the tone, other politicians follow suit in their own arena. The push to implement clearly unconstitutional restrictions on social media is a striking example. Trump debuted this particular style of pasta-toss with his quickly squelched national TikTok ban, a move the Trump-appointed U.S. District Judge Carl J. Nichols called "arbitrary and capricious." TikTok responded to the policy by asking to be treated fairly "if not by the administration, then by the U.S. courts."
Montana followed suit in May with its own statewide TikTok ban, which illegally targets a specific company. Meanwhile, state legislatures in Florida and elsewhere have attempted other unconstitutional intimidation, restriction, or prior restraint on what types of content social media companies choose to carry.
Congressional Republicans, including Sens. Josh Hawley (R–Mo.) and Marco Rubio (R–Fla.), have gotten in on the action as well, authoring several hastily written bills that restrict TikTok to varying degrees, introducing them in a flurry, and insisting on a vote—all while fully conceding that the specifics of the bills needed work to make them First Amendment–compliant.
Protecting the Constitution should not be the sole business of the Supreme Court. Thankfully, a few politicians still know better than to make a mess and leave the judiciary to untangle a pile of noodles.
"Which is more dangerous: Videos of teenagers dancing or the precedent of the U.S. government banning speech?" asked Sen. Rand Paul (R–Ky.) in March. "For me it's an easy answer. I will defend the Bill of Rights against all comers, even, if need be, from members of my own party."
