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Biden’s Unconstitutional Overreach


The Biden Administration is aggressively testing constitutional limits. Understanding legal precedents and how they interact, particularly on constitutional rights, can be tricky. That said, Biden is going where prior presidents have not – apparent disdain for rights. Examples illustrate. 

First, Biden’s federal mandate that employers over 100 enforce COVID vaccinations, absent a religious or health exemption, raises novel legal questions. To many, the mandate is infuriating. 

Enforced by OSHA, it will be litigated. What are the big issues? One is this: The Constitution’s 10th Amendment reserves all rights not expressly given to the federal government – to the American people and states. That is bound to be central.  

The US Supreme Court has identified narrow federal powers under the “Supremacy Clause,” “Commerce Clause,” and 14th Amendment – with all others left to states and “the people.”

Objectively, while “States rights” have eroded over time, “hard stops” do exist. This vaccine mandate may hit one or more of these “hard stops.” 

For reasons tied to Civil Rights and “equal protection,” federal powers are considerable. On the other hand, recent precedents make clear that states and “the people” have rights. Beyond free speech, freedom of worship, right to keep and bear arms, and enumerated freedoms, others exist. 

Major Supreme Court decisions point the way. For example, the 1997 Printz v. US decision “reaffirmed states’ rights and the Constitution’s anti-commandeering provisions.” Justice Scalia struck down the Brady Handgun Act – saying it violated the 10th Amendment. 

Why? It required local sheriffs to do background checks, “commandeering” law enforcement, telling them what to do – insisting they give up discretion. Scalia cited New York v. US (1992), which says the federal government can incentivize certain actions, not punish non-compliance.  

That opinion, written by Reagan-appointee Sandra Day O’Connor, noted the federal government cannot “commandeer” or compel certain actions since doing so “crossed the line distinguishing encouragement from coercion.”  See, e.g., New York v. United States; and New York v. United States

In Printz, Scalia explained “anti-commandeering.” “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program,” adding “such commands are fundamentally incompatible with our constitutional system of dual sovereignty.” Boom tick, as they say. 

Beyond these cases, a third case may prove dispositive – limiting how far the federal government can go. In Murphy v. NCAA (2017), Justice Alito wrote: “The anti-commandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States.”

Alito added: “Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States,” so “The anti-commandeering doctrine simply represents the recognition of this limit on congressional authority.” See SUPREME COURT OF THE UNITED STATES

So, what is the rub? 

You may see it. None of these cases is exactly on point. The Biden mandate pushes employers, not states, to demand vaccines – and comes from a president, not Congress.  

Counterpoint: Rights assured in the 10th Amendment belong to States and the “people.” The Amendment reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” And federal enforcement would surely require State involvement.

Similarly, while existing cases address federal overreach by Congress, a presidential order more directly offends the 10th Amendment, as it comes without legislative authority. 

In short, the likelihood is high that these “anti-commandeering” cases, and clear protections for States’ and people’s rights, will lead to this mandate being vigorously challenged. 

Cases on the opposite side? 

Yes, but they suggest little defense for the federal mandate. Prior mandates upheld have been local and state, not federal. So, in Jacobson v. Massachusetts (1905), for example, the state-required vaccines for children. By contrast, a federal mandate usurps state and local powers, themselves limited.  

Another issue: OSHA enforcement. OSHA can only enforce an act of Congress, not executive orders. The OSHA Act of 1970 might work, but only allows actions if “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful,” and if “necessary to protect employees from such danger.”  

All of this points to knowing overreach. As in other areas, the Biden crowd is pushing constitutional limits, seeking to federalize what has never been federal. See also, Federal Vaccine Mandates Pose a Constitutional Triple ThreatBiden’s wildly unconstitutional vaccine mandate

Consider other examples.

Second, Biden is pushing federal prosecution of parents speaking up at local school boards. This violates many norms, not least constitutional protections for free speech, federal-local control over school boards, and use of federal anti-terrorism laws, calling parents “domestic terrorists.” 

Again, this move contravenes well-established constitutional norms, pushing misuse of federal power (The Patriot Act), unprecedented coercion, intimidation, chilling of speech. States and parents are pushing back. See, e.g., The Patriot Act Wasn’t Meant to Target ParentsEric Schmitt- Missouri Attorney GeneralOKLAHOMA PARENTS: SCHOOL-BOARD CRITICISM IS NOT ‘TERRORISM’; Opinion: Democrats have declared war on ‘school board moms’.

Third, consider Biden’s unconstitutional extension of the so-called “eviction moratorium.” The Biden White House boldly ignored the 2021 US Supreme Court ruling that declared only a congressional extension of the moratorium is constitutional.  

Stunningly, after that June holding, Biden nevertheless chose to unconstitutionally extend it by executive order until slapped down by the US Supreme Court. Biden knowingly ignored the law. See, e.g., President Biden’s extension of the eviction moratorium is unconstitutional and he knows itBiden’s eviction moratorium defies the rule of law

Fourth, in April 2021, Biden issued a series of anti-Second Amendment restrictions on gun ownership. This again pushed limits, ignoring the Constitution’s limits on executive authority. 

See, e.g., Stefanik: Biden gun control orders ‘unconstitutional’Republicans criticize Biden’s gun safety executive actions as an ‘infringement’ of Second Amendment rightsBiden’s false claim that the 2nd Amendment bans cannon ownership

In truth, the list exceeds examples, but space is limited. What does this overreach mean? Just this: The Biden team appears not to respect constitutional limits. Prepare for more overreach. 

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Jane CA
7 months ago

Frankly I am scared.. When are we the people going to oust this puppet? The election was rigged but he stays in office? If our congress and senate doesn’t get a set. I’m afraid the dems have already won. It was suggested here we run for the school board, well I have no kids. I don’t buy Chinese products (if they have a label). I have donated what we can. But my republican senators and members of congress just sit on their butts while the leftists continue to dismantle our Constitution, steal our rights , open our borders to criminals and terrorists and promote their misguided Marxist agenda. Will there be a civil war? or will complacency rule? I don’t want to be Chinese,,,, want to be free!

7 months ago

And news outlet that acts as if this is a legitimate “administration” is not worth reading.

The ONLY story is election fraud. EVERYTHING that is going wrong in this world is the result of unelected dictators running countries all over the world.

You think Trudeau actually “won” his reelection? You think the leader of the U.K., France, Germany, Australia, etc. were actually elected?

Did you SEE what happened at 10:30 P.M. on 11/3 2020????

Wake the hell up or shut the hell up.

And anyone who says we need to “move on” from 2020 was in on the steal (or approves of it)… and to you I say go to hell.

Bill T
7 months ago

THIS IS OBAMA ON STEROIDS (and with CHINA and the globalists behind everything that’s happening right now it’s guaranteed to cause civil unrest and this is the playbook of the Marxist fascist regime) divide and conquer!! There playing it to perfection

7 months ago

This is not our COMMANDER IN CHIEF in charge of any of this purposeful sabotage of our freedoms and constitutional rights as American citizens and they literally despise our constitution and our founders , Cancel culture is actually a downright act of war against our history and all the patriots who sacrificed their lives and gave everything to allow all of us in this country to be free and determine there own fate and destiny. It’s what separates our country from all others and is the reason millions of immigrants came here to have a chance at a better life and build a solid foundation for their family. Pandemic has allowed the progressive socialist democrats (yes unfortunately our president is nothing more than a puppet and mouthpiece? And closely watched by his entire party especially the ones who are actually running our country and believe me it’s not BIDEN! Bernie is smiling like never before , Obama is having giant parties with his elites and several others are doing any and everything than can to secure a stranglehold on our country and with this multi trillion dollar socialist deal there desperately trying to implement, it will put all the pieces of the puzzle together for the guaranteed END OF OUR COUNTY (they must be stopped and right now!!

Butch Stevens
7 months ago

Acknowledging that this overreach is illegal and unconstitutional, how long will these actions be ongoing before a court or court order calls foul and puts these criminals in jail?

7 months ago

Great article!! Patriots…keep fighting, keep standing for your freedoms and do not comply with this Tyranny!!

7 months ago

There is good information in this article. I hope it is used to combat Biden’s power grab. However, if the Dems pass the “Freedom to Vote Act” in the future, it will not matter what legal precedents exist to combat Bidens’s power grabs. The Dems will simply pass legislation to do whatever they want, whenever they want.

David Millikan
7 months ago

Make State Governors have a Convention of States convene to REMOVE the current Administration.

7 months ago

And herein lies the problem; government run schools have not included teaching the precepts of our United States Constitution and the ‘Bill Of Rights.’
This is why we are seeing these mandates supported by nearly every state in the Union. Their leaders as well as their citizens are ignorant of our country’s laws. If it’s not learned, it’s not known. Thus due to the unprecedented level of ignorance and lack of a quality education in this country, it is going down fast!

Steven H
7 months ago
Reply to  Judy

Defund the Federal and State Departments of Education. They have done little to improve the quality of education in our country. They have, however, been very successful in indoctrinating generations of our youth.

Bill on the Hill
7 months ago
Reply to  Judy

Both Judy & Steven H have hit the nail right on the head… If ignorance is bliss, then it is now on FULL display with our federal gov’t’s total lack of patriotism as it is completely missing & that is clearly reflected in what our young minds in school have been taught for decades now as that is a sad truth that all of us have to reckon with moving forward…
We are now experiencing what our forefathers warned us about 250 years ago, beware of a tyrannical gov’t. They DO NOT represent We The People, they represent their personal gains first & foremost, anything else is secondary, i.e. both you & me…
Bill on the Hill… :~)

7 months ago

We have a Nueremberg Code Treaty that is supposed to prevent the government to do experiments on citizens without their consent…..shall I say the experimental gene therapy hidden under the farce of a vaccine…that does not stop the vaxed from spreading it and evidently does not last 3 months of protection….so more shots…I am 74 and refused to get this crap….got Delta Covid and was very sick….did not have to go to the hospital because I got the infusion….you know the one that Biden wants to ration out because it works….told my husband absolutely under no circumstance was he to put me in the hospital because once there you chances of dying escalate. Merck has a new antiviral pill….you can bet your sweet @zz that it will have a hard time getting through the FDA for approval….follow the money people….Phizer and Modera are bringing in billions of dollars and you can pretty much know that a lot of Congress has stocks in them. Our government is corrupt from the Supremes down to the individual departments, it all needs replacing.

7 months ago

Oba-den(Pedo Joe)does exactly what Obama-Soros crime cabal instruct him and his usurped mis-ministration to do. The entire Biden Administration is nothing more than a front for Obama’s thirteenth year of destroying the United States of America. Everyone in D.C.. knows it and no one has the testicular fortitude to tell the American public the truth. Read or re-read “Rules or Radicals” and what you see being done to our country is coming straight off the script, line for line,

edgar fletcher
7 months ago
Reply to  Bill

Rules For Radicals is exactly what is being implemented. Good Post!

7 months ago

Get rid of all of them. It’s time to start charging these traitors for their crimes from Antifa, BLM, unions on up to those tyrants in our White House

7 months ago

Our government has become a Kakistocracy (term used to describe a government run by exceptionally stupid people.)

7 months ago
Reply to  Granny39

They only make it appear ‘stupid’ when actually camouflaging their communist brilliance.

7 months ago

One needs to capitalize the phrase “fundamental structural design of the constitution” as the key to what is being pushed in the Biden administrations efforts…..that is their goal. To alter the fundamental struture of the constitution. To “re-design” it. To make is what is was never intended to be….to turn it against the people for whom it was written to protect and guide. When the constitution is successfully turned upside down, all other matters of federal, state and personal powers fall. I remain with this perspective…the three things of importance…first retain and support constitutional structure and design….second, by law, make the federal government accountable in a budget mandate…third, put term limits on federally elected officials (congress, thus forcing the issue of political power mongering off the table. Chief among these three is retaining the fundamental structure and design of the constitution. While I may not have the original source correct, JFK said, “the only thing necessary for the triumph of evil, is for good men to do nothing.” What our current administration is doing is evil at best, and it seems we have too few “good men” doing enough to breech the walls of such evil. This is where I fault the conservatives in general…..their lack of action, far and above the work of those who prefer the triumph of evil.

7 months ago
Reply to  D.P.

This is still a part of the Obama plan to fundamentally change America.

7 months ago
Reply to  Max

Yes Max, many of the same people that worked in the Obama administration are part of the Biden administration. So of course they seek to further the goals laid out by Obama to fundamentally transform America (into yet another abysmal, socialist h*ll hole). Yet the American people continue to do nothing to push back. So expect more changes to be enacted, until this country is completely unrecognizable.

7 months ago
Reply to  PaulE

You are correct !!!

7 months ago
Reply to  D.P.

Thanks for this information. Yes, these people are evil and probably not even human anymore. I can’t even bring myself to pray for them. But I sure am for the rest of us.

7 months ago
Reply to  D.P.

Yes, the vast majority of American people have chosen to do little to nothing to push back against the actions of America’s socialist movement. Thus there is nothing preventing more changes from being enacted.

7 months ago

Seems like everything Bozo Biden does is unconstitutional. Has the moron even read the constitution?? We need to get him out of the white house…and that so called VP too. She’s as worthless as he is.

7 months ago

You say you want a revolution Joe? Just keep pushing. When we are all out of work and the money flow ceases, people will stand up and fight back. A whole new meaning to “rise up” and it sure as Hell isn’t “woke”. You have awakened a sleeping giant.

7 months ago

Does ANYONE any longer believe that our President and our Elected NON-representatives are truly guiding the country??? They are bought and paid-for puppets to the leftist elite globalists, the UN and the international banking system. The only course, seeing as how we can no longer have faith in and trust our electoral process, is to resist and become “activists” at the local level to deny our “masters” (as they see themselves) the opportunity to control us.

7 months ago

biden is just a 50 year failure, anti American, Democrat loser who deludes himself as someone of importance!
A TOTAL clown show and the WORST person to occupy that office EVER.
sorry democrats, you picked another loser

7 months ago


Linda Kurek
7 months ago


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