President Obama famously said he didn’t need Congress because he had his pen and his phone. Someone needs to get that phone an extra charger, because it seems like President Biden is on it all day long.
It isn’t just the president’s executive orders—a record-setting 38 in his first 71 days. Biden’s even broader unilateral actions have been through his army of bureaucrats in federal agencies: the departments of this, that, and the other thing, which increasingly regulate the minutia of our lives and spend trillions of borrowed dollars each year.
Consider just a few actions. On Feb. 11, just three weeks after Biden’s executive order on gender identity, the Department of Housing and Urban Development issued a directive that the White House called a “rule change,” mandating that all entities subject to the Fair Housing Act not “discriminate” on the basis of sexual orientation or gender identity—language nowhere found in the statute. The agency didn’t bother to tell the public in advance or let them submit comments, which federal law also requires. Had they done so, they might have thought of the impact on religious colleges, which oppose placing males in dorms and dorm rooms reserved for females. Alliance Defending Freedom represents College of the Ozarks in a lawsuit to stop this radical and hasty directive.
Two weeks later, the departments of Education and Justice withdrew court filings and complaint investigations, in which the Trump administration had said what everyone believed until yesterday: that Title IX of the Education Amendments of 1972 gives female athletes a right to a fair playing field, and therefore schools can’t let biological men compete in women’s sports. A few weeks later, the same departments issued more announcements reinterpreting Title IX to gut protections for women. Several female athletes are seeking to protect their rights under Title IX in court.
Meanwhile, on March 18, the Department of Health and Human Services announced it would issue new proposed rules to allow entities that receive Title X federal family planning funds to perform abortions in their family planning programs, and to require such entities to refer for abortion—even though the Title X statute says funds cannot go to a program where abortion is a method of family planning.
The Biden administration then told the Supreme Court to dismiss an appeal in a case that blocked the Trump administration’s rule clarifying that Title X funds may not be used for these purposes. The timeline announced for the new Biden rules is both ridiculously fast and close-minded, defining the final outcome before the public gets to comment. Pro-life medical professionals have asked the Supreme Court to let them continue to litigate the case over the Trump administration’s life-protecting rule, so that once there is another pro-life administration, it can implement similar policies without getting bogged down in court for years on end.
Then there are the “sue and settle” cases. Left-wing groups sue, then the Biden administration gladly surrenders the case so they can get rid of Trump administration regulations in a matter of days, even though those rules took months or years to put in place. The administration has already done this to short-circuit a rule that would have protected faith-based foster care and adoption agencies, and to block another rule that would have required federal agencies to reconsider their endless volumes of mandates periodically or else sunset them.
But there is a way to push back: When atheist groups filed suit in D.C. asking the Biden administration to delete a rule that protects free speech on college campuses, ADF attorneys representing the religious student organization Ratio Christi asked the court to let them join that case to preserve the rule. Likewise, several states asked a court in New York to let them join a case to defend a religious liberty regulation issued by the Department of Labor last year in the face of a lawsuit that invites the Biden administration to negate that rule, too.
This rule-by-bureaucrat is just the beginning. Biden has also used the Food and Drug Administration to allow the risky abortion drug RU-486 to be administered without a doctor present, and HHS will be responsible to re-impose both the Obamacare abortion-pill mandate on nuns and religious businesses, and the Obamacare requirement that doctors provide abortions and so-called gender transitions.
But the Constitution requires rule by the people—meaning their elected representatives in Congress. We respectfully suggest that President Biden stop using his phone to impose new bureaucratic mandates and instead click on the Constitution and the Administrative Procedure Act. His attorneys will need to read those laws in court soon enough.
Matt Bowman is senior counsel for Alliance Defending Freedom (@Alliance Defends).
The views expressed in this piece are the author’s own and do not necessarily represent those of The Daily Wire.