Progressivism vs. Popular Sovereignty

On Thursday, Alabama Attorney General Steve Marshall filed a letter, on behalf of 16 state attorneys general, to U.S. House Speaker Kevin McCarthy (R-Calif.). The letter, which pertains to Biden Administration policy on COVID-19, is both important on its own merits, insofar as what it urges the new Congress to do, and more broadly significant insofar as the spotlight it helpfully shines on the American ruling class’s insatiable desire to govern via perpetual crisis.

The letter, which cleverly cites Joe Biden’s own September 2022 admission that “the pandemic is over,” decries the administration’s continued reliance on “emergency” powers to implement various COVID-related policies—especially those pertaining to the “emergency-use authorizations” that have enabled the government to develop, mass-produce and mass-distribute the COVID vaccines despite the fact they have still not been approved by the Food and Drug Administration.

“Things have changed,” the attorneys general argue, since “emergency authorization was granted two years ago to get the first vaccines distributed.” They continue: 

In short, things have changed. The American people, in their characteristic spirit of resilience, have learned to live with COVID-19. Even President Biden noted that people generally are no longer wearing masks, and mandates to do so have disappeared from all but the most sensitive areas. Schools, shops, restaurants, and businesses are open. City streets are bustling. The idea that we are still in the midst of a medical emergency flies in the face of the facts on the ground. Yet, (Health and Human Services) and FDA continue to perpetrate the myth that an emergency exists to aggrandize their power at the expense of people’s freedom.

The letter ultimately concludes: “We encourage the new Congress to move quickly to limit HHS’ and FDA’s ability to unilaterally declare an emergency and approve unproven drugs that could cause harm to Americans, override any remaining emergency use authorizations for COVID-19 vaccines, consider reforms to the sweeping liability shield created in 2005, and ensure that our liberties and system of government are robustly protected against any such future attempts at medical tyranny.”

The letter follows on the heels of Gov. Ron DeSantis’ (R-Fla.) similar recent successful petition to the Florida Supreme Court to empanel a grand jury to investigate COVID-19 vaccine manufacturers for potential wrongdoing and consumer fraud. (Notably, former President Donald Trump continues to be an enthusiastic advocate for the mRNA COVID-19 vaccines.)

The attorneys general are wise to amplify DeSantis’ recent move with an additional shot across the bow at the “unproven” mRNA vaccines, which are largely defective products that do not prevent viral transmission. Even more important, they are correct to call out the Biden administration’s unyielding desire to govern via continual crisis, as was also evinced by the administration’s farcical recent decision to seek an appeal—nine months after Judge Kathryn Mizelle’s initial district court ruling—to restore the Centers for Disease Control and Prevention’s feckless, since-discarded public transportation mask mandate.

“This is not about an urgent matter of public health,” Brant C. Hardaway, the lawyer who represented the initial plaintiffs who successfully sued to overturn the mask mandate last April, said upon hearing last week’s news that the Biden administration would now seek an appeal. If this were an “emergency,” he reasonably observed, then the Biden Department of Justice would have acted with more urgency after Judge Mizelle’s ruling last April, including seeking an emergency stay at that time (which, notably, it did not do).

Hardaway is correct that the Biden administration’s actions are not about an “urgent matter of public health”—or any other type of legitimate public “emergency,” for that matter. Instead, the entire act, as this column has previously noted, is emblematic of progressivism’s overarching ethos, best encapsulated by former Obama-era White House Chief of Staff and Chicago Mayor Rahm Emanuel’s infamous exhortation: “You never want a serious crisis to go to waste.” From the perspective of the American ruling class and the progressive elites who comprise it, the only relevant incentive is to continually—indeed, perpetually—latch onto any “emergency” fig leaf in order to justify “enlightened” rule, typically imposed in top-down, antidemocratic fashion.

This broader societal dynamic, of a sizable (often outright majority) right-leaning portion of the body politic facing constant roadblocks from an insular, progressive elite, is hardly unique to these United States. Just last week, this column highlighted the intense judicial reform debate now roiling Israel’s politics — a shockingly similar situation overall, albeit with elites represented not by the biomedical security state but by an equally unaccountable judicial oligarchy. 

Other global examples abound. But whether the means are “enlightened” juristocracy, cloistered bureaucracy or some grotesque combination thereof, progressivism’s loathing of “We the People”-rooted popular sovereignty and zeal for rule via unaccountable diktat has helped define the terrain on which today’s civilizational struggles are fought. 

Here, there and everywhere, especially in today’s more populist times, it ought to be the goal of conservatives and nationalists to re-politicize as much as possible the law and policy that have been previously de-politicized via administrative or judicial fiat. The re-politicization and democratization of our most pressing societal debates, away from the hands of unaccountable elites, is a worthy counter to globalism’s top-down, homogenizing modus operandi, personified by jet-setting elites’ recent rendezvous in Davos.

Our 21st-century civilizational battles, in other words, are those waged between the popular sovereigntists and the globalist progressives who cling to every would-be “crisis” or “emergency” in a desperate attempt to attain and weaponize ever-more power. I happen to like the popular sovereigntists’ odds of ultimately prevailing. But for now, kudos to the 16 state attorneys general for admirably underscoring the battle lines.



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About Josh Hammer

Josh Hammer is senior editor-at-large of Newsweek. A popular conservative commentator, he is a research fellow with the Edmund Burke Foundation and a syndicated columnist through Creators. A frequent pundit and essayist on political, legal, and cultural issues, Hammer is a constitutional attorney by training. He is a former John Marshall Fellow with the Claremont Institute and a campus speaker through Intercollegiate Studies Institute, Young America’s Foundation, and the Federalist Society.

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