The contrast between Biden’s election margin in 2020 and the
GOP’s vote share in down-ticket races suggested that quite a few normally
Republican voters could not bring themselves to support the party’s
presidential nominee time this time around. Although they had worries about
Biden’s policy agenda, they were tired of having someone in the Oval Office who
routinely acted less than presidential.

But, of course, this begs the question of what it means to
be “presidential.” Before notions of “bully pulpit,” “popular mandates,” and
“party leader” became routinely associated with the occupant of the White
House, the Constitution set the standard for being presidential. The
Constitution emphasizes less the powers a president could exercise and more the
ends for which those powers were used — to wit, his oath to “faithfully execute
the Office of President” and “to the best” of his “ability, preserve, protect
and defend the Constitution of the United States.” Importantly, included under
his duty to faithfully execute the office was the specific obligation to “take
Care that the Laws be faithfully executed.”

But just this past week, President Biden admitted that he lacked
the legal authority to extend the Centers for Disease Control and Prevention’s (CDC)
eviction moratorium (originally enacted by President Trump) and yet ordered the
CDC to come up with dubious legal rationale for extending it further. This is
reminiscent of Teddy Roosevelt’s view of presidential power: A president can do
whatever he wants absent an explicit prohibition. Indeed, as Maxine Waters, the
chair of the House Financial Committee Services, so pointedly put it on the
administration extending the moratorium, “Who is going to stop them? Who is
going to penalize them? There is no official ruling saying that they cannot
extend this moratorium.”

The administration’s decision to extend the moratorium is no
less than a slap at the Supreme Court. A little over a month ago, a majority of
the justices agreed that there was no statutory basis for the ban on evictions.
The only reason the White House could ignore this decision was because Justice
Brett Kavanaugh, while agreeing with that legal finding, voted with the
liberals on the court to extend the ban “because the CDC plans to end the
moratorium in only a few weeks.” Rather than use the extension to get its executive
house in order with the “more orderly distribution of the congressionally
appropriated rental assistance funds,” the administration sat on its hands,
perhaps hoping Congress would jump in and give it a statutory leg to stand
on. 

Wishful thinking.

Rather than using her majority in the House to pass new legislation, Speaker Pelosi punted on what ought to be the primary responsibility of Congress — passing a law. Instead, she and her team called on the White House to unilaterally address the issue: “Action is needed, and it must come from the Administration.” And on the Senate side, Majority Leader Schumer simply pointed to the protest staged by first-term member Rep. Cori Bush (D-Mo) in which she slept overnight on the steps of the Capitol as key to convincing the administration. “You are great,” Schumer pronounced. “You did this.  One person did this!” So much for the Senate taking on its intended constitutional role as the great deliberative body. So much for the Congress acting as a check on presidential assertions of authority outside of the law.

Complaints about “the imperial presidency” more often than not are tied to presidential assertions of authority in foreign policy and national security. But, in reality, there is just as much a case to be made that, in recent years, the unilateral issuance of domestic rules, regulations, and executive orders is no less problematic. The modern presidency has immense power — often with good reason. But that is why it is even more incumbent that “being presidential” must be understood to include a faithful adherence to the rule of law and the Constitution.

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