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Biden’s Response to Roe: An Analysis

As many are no doubt aware, the Supreme Court of the United States overturned the 1973 decision Roe v Wade. Given how big of an issue this is for Democrats (they have run on it for decades), one would think they would have a response ready. Sadly no. The response, if one may call it that, has been anemic, to say the least. Extra damning is the fact that a draft of the opinion was leaked to the public. They knew this was coming and have done precisely nothing in response. Today I want to take a look at a recent Executive Order from President Joe Biden issued in response to the Dobbs ruling overturning Roe. I also want to use this to look at Mr Biden’s political philosophy more generally.

They’re Called The Classics for a Reason: Joe as Gaslighter in Chief

As part of his reading of the Executive Order, the President dragged out this classic from the hymn book:

We need two more pro-choice Senators and a pro-choice House to codify Roe as federal law. Your vote can make that a reality.

The President would do well to remember that he currently has 51 votes in the Senate and a majority in the House. This gives the Democrats complete control of the Legislative and Executive Branches. The suggestion seems to be that not enough of the Democratic Senators are pro-choice. So the voters have to vote not just for Democrats, but for the right type of Democrats. The situation is never quite good enough to justify action, is it, Joe? There’s always a problem, for which the voters can be blamed, that gets in the way? Democrats have had super-majorities in the past and still not codified Roe.

Now you might be wondering: if this is such an issue for Democrats, why have they not codified Roe? The answer is in the question: the issue of abortion is just about the last issue the Democrats have left. If they actually solve the issue, then it is resolved. They can no longer run on the issue if it is dead. The big bad Republicans coming for your abortion rights (which was true – they were) was designed to get the Democratic base out to vote. The Democrats running on codifying Roe was only useful as long as it was not done. You codify into federal law the protections contained in Roe and the goose that laid the golden egg is depleted. This is why the Democrats, despite many opportunities, did not codify Roe. For this, eternal and unmitigated shame on them.

The Meat: What the Executive Order Does

Krystal Ball of Breaking Points provides a useful summary of what the Executive Order says:

[The Order] largely finalises what has already been announced by the Administration. [This includes] instructions to the Justice Department to ensure women can travel out of state for abortion care. [The Order] addresses the elevated risk for patients, providers and clinics, which includes efforts to protect mobile clinics that have been deployed to state borders [for purposes of allowing women to go interstate for termination care].

It goes on, but you get the basic idea. Noteworthy here is that these actions are largely in response not to the Dobbs decision, but to state action taken in response. Many states had what were called trigger laws in place. These were laws that, once Roe was overturned, would move to severely restrict (or outright ban) abortion. The President is responding more to those actions than to the Court’s ruling. He side-stepped actually codifying Roe by blaming the voters for not giving him the political tools to do so. Cute, Mr President, but I for one see through it. You have options, but you are not willing to take any political risks to use them. Allow me to explain.

The President’s Options, Part One: The Senate

The Democrats have a majority in the Senate. They also control the House. This means they should be able to get their agenda through. The House is what we may call a tyranny of the majority. Basically, if you are in the majority, whatever you say goes: the minority has no power. This is not the case in the Senate. There is a piece of…parliamentary procedure in the Senate called the Filibuster. This is where the minority can require a sixty-vote super-majority to pass a bill.

Previously, this used to be the so-called ‘talky filibuster’. This required standing and talking for as long as possible without a break. This is no longer the case. Now all that is required is for a Senator to say ‘I filibuster’. No talking is needed and sixty votes are now required. To pass any legislation, you either require a super-majority or members from the other side to vote with the majority. How often does that happen these days?

What is left out of the discussion around the Senate is that so many of its rules are convention. All that would be required to carve out an exception to the filibuster is a majority vote. But the Democrats are reluctant to do this because they want to maintain the power of the minority for when they inevitably are back there. But this too is crap: an exception does not do away with the filibuster entirely.

Finally, for those who cite Manchin’s conservatism as an obstacle, there is a solution here too. Manchin’s daughter is a criminal. There are emails of her conspiring to price gouge epi-pen users. Threaten him with the AG or the DOJ going after her unless he changes his vote. This is called playing hardball politics.

The President’s Options, Part Two: Divide and Conquer the Opposition

Even if the Democrats could not get a full codification passed, you can still propose individual bills codifying parts of Roe. Examples here include well-known exceptions to abortion bans such as rape and incest. If the Republicans wish to vote against or filibuster these, let them do so at their own political peril. Democrats hold the majority position here. I believe I saw a poll that said abortion not being legal under any circumstances is supported by roughly 15% of the population. The Democrats then paint themselves as on the side of the people and the Republicans as the extremists that they are.

Now, of course, there are ‘pro-life’ members of the Democratic caucus, and this may explain why they do not take this path. The very exposure of the extreme Republicans I mentioned above would also expose any extreme Democrats. Evidently, the Democrats are unwilling to expose extremists in their own ranks: they value power more. So to hell with addressing this issue they have run on since Roe was decided in 1973. Power, with which Democrats do precisely nothing, is more valuable.

The President’s Options, Part Three: Abortion Clinics on Federal Land

Representative Alexandria Ocasio Cortez proposed building abortion clinics on federal land inside states where the procedure is severely restricted or banned. The central idea seems to be that state governments have no power on federal land, and so clinics could be built there if the federal government desired. Any state law restricting termination procedures would be null and void on federal land. It is noteworthy too that the Hyde Amendment, which prohibits federal funding for abortion, also does not provide a problem here. Since it would be the provider paying the government to lease the land, no federal money would go towards termination procedures. It is a clever workaround.

The President’s Options, Part Four: Court Reform

The final option that the President has that was notably absent from the statement, the Order itself, or general discussion, is Court packing. Since three seats were arguably stolen from the Democrats (Gorsuch, Coney-Barret and Kavanaugh), many have floated the idea of expanding the Court. This idea, if the Administration were ever considering it at all, has been, if you will pardon the expression, aborted. The Supreme Court has gone full rogue authoritarian and the Executive and Legislative Branches, nominally meant to be a check on the Court, are doing nothing.

Former President FDR similarly faced a rogue Court. All he had to do was threaten to reform/pack the Court and they saw the error of their ways. Joe Biden does not have the conviction to do that. He is, at his core, an institutionalist and a conservative. Rocking the boat is not in his nature, even if it is taken over by pirates.

Conclusion: Institutionalism as Death Knell

I hinted above at Mr Biden being an institutionalist. I should define what this means. It refers to someone who defers to established norms and conventions, seemingly for their own sake. The actual usefulness of the institution in practical terms is irrelevant. In Mr Biden’s mind, the Court ruled this way and so the best he can do is tweaks around the edges. This exposes the fundamental conservatism of Mr Biden’s approach to politics. He is unwilling to do anything that would be considered ‘uncivil’ or ‘lacking decorum, Good Sir’.

Mr President, asking people to depart in an orderly fashion and wait their turn while the theatre is on fire helps no-one. Institutions, like anything else, are ripe for reform if they no longer serve the interests of the people. The Republic is crumbling around you, Sir. Your unwillingness to do anything may be concisely summed up as an argumentum ad morem fallacy. This is the argument from tradition. In other words, something is correct not because of the substance of the argument, but because it comes from tradition. Basically, traditional equals correct. If this is your guiding principle, Sir, America should be very different than it is now. Slavery should still exist, along with prohibition and the infamous ‘three-fifths clause’. This is not an effective argument, Mr President.

Like any body-politic that hopes to survive, America must be adaptive. She cannot afford to become calcified. At this point, the incumbent President is not the man for the moment, and should be primaried.


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