During the recent presidential primary and election campaigns the underlying question concerning Joe Biden was, given his druthers, how would a President Biden govern? One of the more interesting fantasies marketed by the Biden campaign was (and remains) that President-elect Joe Biden is a moderate whose election presages a return to normalcy.
While it is true that Biden may be less radical than members of “The Squad”, that’s really not saying very much.
The key to the Biden candidacy and likely governance strategy lies in the profound but under appreciated truth that politics lies downstream from culture. Today it is culture that dominates elective politics and in ways that are not obvious to most. That is not an accident. In campaigns, politicians speak in gauzy generalities and use cultural symbols to deliver emotionally satisfying messages designed to bring voters to the polls. But those symbols are typically anodyne and don’t really say much about how, if elected, a politician would govern.
There is a big difference between what politicians say and what they do. Former Governor of New York, Mario Cuomo, used to say that “… you campaign in poetry, but govern in prose”. Which is where interest groups and party organization come into play.
On the stump politicians routinely make utterly implausible promises that they inevitably fail to accomplish. But in the process the successful ones do manage to hold on to their base of support. They do this by taking care of the interest groups that provided them with organizational and financial support.
These politicians go by the old adage “Don’t forget to dance with the girl who brung ya.” They take care of their interest groups–the girl who brung them. Those groups have specific policy goals that they would like to see accomplished, and they are not about to be satisfied with pie-in-the-sky rhetoric. They want results.
In part, this is what accounts for the wide chasm between what politicians campaign on and how they actually govern. The masses get the rhetoric; the interest groups get the policy. The mechanism that facilitates the process–the difference between campaigning and governance is the bureaucratic apparatus of the Administrative State. It is through Agency rule-making that interest groups can maximize their leverage and achieve their goals without necessarily having to petition Congress.
The emasculation of Congress and neutering of democratic choice is the direct result of the progressive faith in rule by disinterested experts perched on bureaucratic rungs of power. The rising power of the bureaucracy over American life crucially depends on several factors. First, in its desire to escape accountability career politicians have continued to delegate massive amounts of decision making authority to Agency bureaucrats. Probably well above and beyond what is constitutionally permissible under the non-delegation doctrine.
Second, generally under Chevron deference (1984), the courts are bound to accept an Agency’s interpretation of an ambiguous statute within its jurisdiction as long as the interpretation is not unreasonable.
Third, the continuing politicization of language combined with deliberate use of ambiguity and the denial of the idea of fixed meaning effectively gives Agencies carte blanche to rewrite entire laws well outside their original intent.
These developments have placed enormous and increasing power in the hands of the Executive Branch. Which brings us to the question of President-elect Biden’s allegedly moderate instincts.
Let’s take a case in point. In the matter of transgender rights Biden has promised to use Executive power to “…restore transgender students’ access to sports, bathrooms, and locker rooms in accordance with their gender identity.” He further promises to commit to passing the Equality Act which according to CNN “…would protect against anti-LGBTQ discrimination in commercial and public life, with no religious exemptions.”
Let’s take a look at the implications of this. The moderate Mr. Biden has clearly said that he believes that sex differentiation is simply a cultural construct; that your sex is not an objective reality, and that your sexual identity is simply what you declare it to be.
Here Biden has clearly hitched his wagon to the trans activist train. Rather than call gender dysphoria what it is, he has chosen to use the coercive power of government to re-shape society according to the world view of post-modern cultural de-constructionists. This, even though real world evidence shows that sex differences are embedded in our DNA. For instance, all else equal men have greater bone density and lung capacity. These differences matter, especially in sports. And women’s sports are being devastated by men competing as self-identified women, including those who have transitioned.
For example, the British Journal of Sports Medicine found that trans women had a 12% advantage across various exercise metrics a full two years after hormone treatments to suppress testosterone. (Before treatment they had a 31% advantage). The academic journal Emerging Topics in Life Sciences says that “Accepted science regarding male and female physiology suggests that trans women have an advantage over their cisgendered counterparts.”
Most important is that this debate is not about women’s sports at all. It is really about the re-ordering of society based on the idea that biological sex is unimportant. And that re-ordering would come from bureaucratic rule-making designed to alter the culture and the language we use to frame issues.
Anyone who doubts this should consider the implications of the H.R.5 —the Equality Act, enthusiastically supported by Joe Biden. Basically the proposed Act amends the Civil Rights Act of 1964 to prohibit discrimination on the basis of sex, sexual orientation, gender identity or a sex stereotype. Further, “SEC.1107.CLAIMS” goes on to say “The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.”.
Which is to say that in direct defiance of the First amendment, religious organizations would be have to change the practice of their religious beliefs in order to conform to the requirements of federal anti-discrimination law. Which law will be interpreted by the bureaucracy in the rule making process. And if there is any doubt as to the upcoming Biden Administration’s intentions here, keep this in mind. Biden has already nominated Xavier Becerra to be HHS Secretary. Becerra is an abortion rights fanatic who is currently suing the Little Sisters of the Poor over their continued refusal to finance employee purchases of contraception and abortafacients.
It actually gets worse. Biden believes that your rights are the ones that are given to you by government. In his recent criticism of Judge Amy Coney Barrett he said, according to NBC News, “she didn’t lay out “much of a judicial philosophy, in terms of the basis upon which she thinks, (sic) are there unenumerated rights in the constitution.”
Not surprisingly, Biden, whom no one has accused of being exceptionally bright, has it exactly backwards. The ninth amendment, which is the one in the Constitution that discusses enumerated rights, reads as follows. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” (emphasis added). That of course means that the enumerated rights doctrine is meant to restrict the power of Government, not people, who retain all their inherent rights.
So when you put it all together, the supposedly moderate Mr. Biden has promised a cultural revolution to upend civil society by using the power of government to impose a wholly artificial definition of sex on it. He promises to attack the First amendment guarantee of freedom of religious practice. And he is of the belief (to the extent he has any) that our rights are not inherent; they are the ones government deigns to bless us with.
Quite the moderate.
JFB
