USA 2020 Elections: Thread

[grarpamp]

> Biden Illegally Commands


Federal Subsidy or Accessory? Biden Pledges to Effectively Subsidize
Violations of State Laws By Teachers

https://jonathanturley.org/2021/08/19/federal-subsidy-or-accessory-biden-pledges-to-subsidize-violations-of-state-laws-by-teachers/
https://jonathanturley.org/2021/06/21/bidens-bad-run-is-the-biden-administration-doing-worse-than-the-trump-administration-in-the-courts/
https://jonathanturley.org/2021/08/15/federal-judge-reverses-biden-order-to-terminate-trumps-remain-in-mexico-policy/

There was a great deal of criticism of President Joe Biden’s press
conference from his refusal to take questions on the Afghanistan
situation to his calling for the use of Civil Rights laws to oppose
any state laws barring mask mandates. One line however received little
attention but contained a breathtaking and troubling pledge: “If a
governor wants to cut the pay of the hard-working education leader who
requires masks in a classroom, the money from the American rescue plan
can be used to pay that person’s salary 100%.” With that line, Biden
pledged to indemnify people who violate state laws, including orders
upheld by the courts. For the states, one can understand if the line
between a federal subsidy and a federal accessory is difficult to
discern.

Biden’s call to use civil rights laws to challenge anti-mask mandates
was itself controversial. Indeed, it could create another major loss
for the Administration. The Administration racked up an impression
array string of losses by the first six months in court. That dubious
record has continued. In states with anti-mask mandates, the states
are making a public health decision. Such decisions (like those made
by the CDC) are generally afforded great deference from the courts.
These states believe that the health and educational costs for
children outweigh the risks for the virus. Many disagree with that
judgment but it is a policy that applies to all children and families
equally.  That makes this a tough case to win.

Yet, that was not the promise that stood out in the press conference.
Indeed, I assumed that I had misheard Biden in promising to pay
teacher salaries and waited for transcripts.  What the President is
saying is that the federal government will indemnify teachers who
knowingly violate state laws. I cannot recall any such prior
presidential pledge to subsidize unlawful conduct and it raises
serious questions over the use of federal funds to encourage
violations of lawful state orders. Again, many disagree with these
orders but they are issued under state laws affording governors this
power.

It is not clear where the funds would come from to fulfill the pledge.
Obviously states were given most of the pandemic funds. Biden may be
suggesting that districts that received the money for school expenses
and programs could use them for funding defiant teachers.
Alternatively, there might be money available through the Department
of Education.

I previously criticized how the Congress appropriated trillions of
dollars for states during the pandemic without any meaningful limits.
This has allowed states like Ohio to literally giveaway millions of
federal dollars as part of a state vaccine lottery.  President Biden
has relied on the lack of limits in simply declaring that states
should give people $100 for taking the vaccine.

Now this lack of any limits has allowed a president to pledge that he
will pay the salaries of any teachers who knowingly violate their
contracts and state law. Before we get to the legal and constitutional
issues, Biden failed to put any practical limits on his pledge. He
just told teachers to defy their state while assuring them that any
lost wages will be indemnified. What if a teacher is suspended? Biden
just promised to cover potentially years of lost wages.  What if the
teacher is fired? Will the federal government effectively pay a
pension? Indeed, this pledge could create a perverse incentive for
states to move to dock or suspend pay to pass such costs to the
federal government.

Legally, the President just pledged to indemnify the violation of
state law. It is an attempt to do indirectly but he cannot do
directly. The pledge is meant to circumvent federalism barriers for
federal mandates. Biden has gone back and forth on such mandates. He
has asserted that he has the power to impose mandates on states and
then claimed that he does not. Most recently, Biden then said that he
might use federal authority to bar anti-mark mandates. The position of
the Biden Administration on the issue is now completely conflicted and
incoherent. The only certainly is a pledge to pay the salaries of any
teacher suspended or fired for violating state laws on such mandates.

Biden’s pledge was made after the Texas Supreme Court upheld one of
the most cited anti-mask mandates. So the President is responding by
promising to fund violations of an order found lawful and
constitutional by the highest court in the state (which is usually the
final word on such issues even for the United States Supreme Court).

In Florida, Gov. Ron DeSantis adopted a rule that lets families opt
out of locally ordered school mask mandates. In addition, the state
board of education approved a policy to allow parents to use vouchers
for their children to attend a different school if they encounter
pushback on their refusal to use masks. Those orders have not been
successfully challenged.

Biden is not alone in supporting such violations. Democrats in
Washington have lionized Texas legislators who fled the state to
prevent the passage of election reforms. These same Democrats have
denounced the filibuster to block bills as a denial of democracy in
Washington.  The Texas order for the arrest of the legislators has
been upheld by the Texas Supreme Court.

The Texas Supreme Court issued a temporary block on mask mandates in
Bexar and Dallas counties on Sunday evening. Even though the decision
was not a final ruling on the merits, most schools complied and
suspended their mask mandates. However, a lower court judge
effectively reinstated the Bexar mandate for public schools. District
Judge Antonia Arteaga declared  “I just wanted to apologize to all
those parents, school administrators, the superheroes that we call
teachers for what someone called the equivalent to a legal tug of war,
unfortunately where our children are right in the middle.” There is no
“tug of war” between a state supreme court and a lower court. The
lower courts are supposed to carry out the rulings of the highest
court in the state. Likewise, Dallas County Judge Clay Jenkins also
claimed in a tweet that justices “did not strike down my face mask
order.” It is true that the Supreme Court did not issue a final order
but felt that there was sufficient support to lift the lower orders
pending any decision. However, there are conflicting rulings on these
mask mandates that the state courts are working through as part of
expedited appeals.

The sharp public disagreements between these courts is unusual but
will be quickly sorted out in the issuance of final orders. What
President Biden is pledging is something entirely different. He is
promising that, despite what the courts rule, the federal government
will subsidize continued defiance of state law. Imagine if Texas
pledged to subsidize any CDC employee who refused to carry out public
health care orders or any border official who refused to release
undocumented persons into the country. It would be immediately
denounced as an attack on federal authority under the Constitution.

Biden’s pledge could create some new law. The Supreme Court has long
held that it is unconstitutional to coerce or commandeer states to
undermine their authority under federalism guarantees. Now a president
is openly calling for the defiance of state laws by state employees
and promising to financially support such violations. He is moving
from commandeering state legislatures to commandeering state
employees.

When he ran in 2020, President Biden promised that he would end
Trump’s disrespect for the courts and return the country to “the rule
of law, our Constitution.” Subsidizing the violation of state law is a
curious way to fulfill that earlier pledge.