The F-Word Biden’s Play for the Courts

In his remarks justifying his vaccine mandate, Joe Biden gave the most fascistic speech ever delivered by a president of the United States. It demanded unconstitutional and illegal powers and replaced the rule of law with partisanship, timed solely to distract attention from his Afghanistan fiasco. 

In overthrowing the notion of law as the embodiment of objective reason, he has made a mockery of the American concept of the rule of law. He has replaced the constitution and law with the willfulness of a king, and a raging one at that. In that regard, I wish his critics would cease calling him a dotard, as that completely distorts the seriousness of the moment. I do not make this charge of fascism lightly, but since no one else deigns to do it, here it is. 

Before going into detail, let me compare Biden’s remarks with a worthy competitor for most fascist speech: Franklin Roosevelt’s first inaugural (March 4, 1933). In it he compared the powers he needed to deal with the crisis of the Depression with those of a general in time of war. By Roosevelt’s reckoning, the American people are his privates to order about. (Recall these were the times during which we saw the rise of tyrants in Europe and Asia.) FDR compared himself with God’s anointed and Jesus Christ (having driven “the money-changers . . . from their high seats in the temple of our civilization”).

Two presidential elections later, in his 1944 State of the Union address, Roosevelt compared the victory of Republicans who opposed him (for his third and what would be his fourth terms) to Republicans of the 1920s and insisted this showed them as yielding “to the spirit of Fascism here at home.”  FDR, in other words, was assailing Calvin Coolidge as an American Hitler! “[I]f history were to repeat itself and we were to return to the so-called ‘normalcy’ of the 1920s—then it is certain that even though we shall have conquered our enemies on the battlefields abroad, we shall have yielded to the spirit of Fascism here at home.” 

The man who was an eloquent wartime president unleashed partisan vitriol at fellow Americans dying for the country in Europe and the Pacific. Thus, “the view that the New Deal was ‘fascism without the billy clubs’ was well-nigh universal among FDR’s opponents on the Left (e.g. Norman Thomas), as well as on the Right (Herbert Hoover)” as Angelo Codevilla has pointed out.   

Recall, too, that Roosevelt’s vice president in his fourth presidential campaign later that year would be Harry Truman who, when he ascended to the throne, threatened to draft striking union workers and accused his 1948 Republican opponents of being front men for fascists, racists, and anti-religious bigots. 

Truman is also responsible for the fascist seizure of steel mills on the pretext of national security, the Korean War. Although the Supreme Court, even while still bearing the stamp and the stomps of Franklin Roosevelt, slapped Truman down for this outrage, he still got three votes for his unlawful and unconstitutional action. 

The racist charge had to be cut back somewhat with the victory of Nazi-conqueror Eisenhower but quickly resumed with his successors. In the decades that followed, as Democrats lost their New Deal grip on national power in both the presidency and in Congress, they panicked and their denunciations reached further lows in the crisis of the rise of Donald Trump. The forcefulness of FDR’s first inaugural abided across party lines with unfortunate results in both domestic and foreign policy.

We should have expected such impulsive behavior from Biden. After all, he bore a well-deserved reputation as a moral fanatic, especially on the subject of race. We witnessed that decades ago in the mudslinging during the 1987 Judge Bork confirmation hearings, as well as in the horrifying 1991 Clarence Thomas hearings

There has never been a federal law, let alone an executive order, mandating or requiring vaccination. Even the state law mandating vaccination, which the Supreme Court upheld in 1905, had a provision allowing the payment of $5 to avoid vaccination. The Occupational and Safety Health Administration (OSHA), which would apply the order, has never demanded vaccinations or regulated employees outside the workplace. In fact, the demand that all federal contractors (and their subcontractors) must comply or have their contracts withdrawn is laughable, as I discovered when I worked at the Department of Labor. Firings or employer penalties never happen, as the effect on the workers would be intolerable, and the unions would have to respond against the government, which won’t threaten to draft them. This is not to mention the difficulty of compliance in determining who is a subcontractor. It may take years to find out. 

Fortunately, constitutional means exist to resist this coup. Elements of the old constitution, however enfeebled, still exist—the separation of powers, federalism, the courts, and, we hope, elections. All are supported by the basic document of the United States, the Declaration of Independence, in its natural rights and its sober admonition to “suffer, while evils are sufferable . . . ”

But there is absolutely no precedent for what Biden demands. Obamacare may have required the purchase of health insurance (at the cost of incurring a modest fine), but requiring vaccination by executive order is a whole different level of power-grab and burden on individuals.

Given these enforcement burdens and the outrage they stir, I don’t think Biden is really concerned foremost about COVID. After all, the latest data about the recent surge, supposedly caused by the delta variant, shows considerable weakening. Biden should have taken the offensive on his vaccine mandate weeks ago, before it got confused with the mask mandate squabbles. 

The originality career plagiarist Biden brings to this fascism is in his peculiar racial appeal: it is not the racism or nationalism characteristic of European fascism but a peculiar racial identity based on self-hatred, making all problems of the human condition attributable to the white race—a collective guilt many of his supporters leap at embracing.

The chief reason Biden is fanatical about his vaccine mandate is that he knows perfectly well that the courts will have to declare them both illegal and unconstitutional. This will then, he must scheme, give him more authority among the gullible to justify transforming the judiciary—expanding the Supreme Court and altering the appellate powers of the federal courts of appeal. At the very least he might fantasize about getting Justice Stephen Breyer to resign and maybe persuade a couple liberal justices to support his actions. 

Thus, Biden, as he has so often before, wants to create a crisis: he wants an enraged public to condemn as immoral a court that would  strike down his executive orders and condemn to death the lives of vulnerable Americans.Such an evil institution should itself be declared unconstitutional. It must be healed immediately, before it sentences more vulnerable Americans to death. But he’s dealing with a court headed by a chief justice who knows how to be a graceful bullfighter.

In the meantime, the proper response to Biden’s coup against the rule of law is the F-word: fascist.

About Ken Masugi

Ken Masugi, Ph.D., is a distinguished fellow of the Center for American Greatness and a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, and a special assistant for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi is co-author, editor, or co-editor of 10 books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.

Photo: Win McNamee/Getty Images

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