Gene Healy
Last week, the New York Times ran a front-page story admiring President Biden’s political acumen on culture-war issues (“Biden Sidesteps Any Notion That He’s a ‘Flaming Woke Warrior’”, NYT, July 4, 2023). You’ve got to hand it to him, apparently: Biden has “deftly avoided becoming enmeshed in battles over hotly contested social issues” like transgender rights. “At a moment when the American political parties are trading fierce fire,” we’re told, “the president is staying out of the fray.”
The claim is pure malarkey. In fact, Biden has repeatedly engaged the full powers of the presidency in an attempt to impose a forced settlement on issues where the American people are deeply divided.
The analysis, by Times reporter Reid Epstein, is entirely style over substance. Being elderly and somewhat out of touch is the president’s secret superpower on social issues, the argument goes. Biden is “white, male, 80 years old, and not particularly up-to-date on the language of the left”; Epstein writes; “the president has not adopted the terminology of progressive activists,” and sometimes seems confused by it.
To be fair, it’s tough even for non-octogenarians to stay abreast of the ever-proliferating jargon in this area. Last month, Biden’s Secretary of State, Anthony Blinken, warned unsuspecting Americans of the perils of “biphobia” and “interphobia,”; and last week brought new “health equity” guidance from the Centers for Disease Control and Prevention (CDC) on “chestfeeding” infants. (Epstein got a little confused himself; the original version of the article included this perplexing sentence: “[Biden] also does not always remember the words most American politicians use to describe same-sex people.”)
But even if, as the Times piece insists, “Mr. Biden has never presented as a left-wing culture warrior,” what the president is actually doing with the weapons of executive power ought to count for something. For example:
the president’s proposed Title IX edicts would give him the power to make national rules about which kid gets to use which bathroom and who gets to play on the girls’ team for every K-12 public school and practically every college in America;
a rulemaking put forward by Biden’s Department of Health and Human Services would require doctors and hospitals to provide “gender-affirming care”— puberty blockers, cross-sex hormones, and “top” and “bottom” sex-change surgeries—including for minor children. Private insurers—and the taxpayer, via Medicaid—will be required to foot the bill;
and in the president’s June 2022 “Executive Order on Advancing Equality for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Individuals,” he proposes sending the Federal Trade Commission (FTC) after doctors practicing “conversion therapy,” which may be defined broadly enough to include psychologists who resist immediately forking over puberty blockers.
“Staying out of the fray”? C’mon, man.
Millions of Americans believe that medical intervention for trans-identifying minors is compassionate “gender-affirming care”; millions more believe it amounts to experimenting on children in the midst of social contagion. The state of the medical evidence here is “worryingly weak”; but even if it wasn’t, the debate’s not likely to be settled by telling people to shut up and “trust the science.”
Biden’s attempt to force a settlement on transgender issues points to a larger problem with “the deformation of our governmental structure” toward one-man rule. The original constitutional design required broad consensus for broad policy changes, but as law professors John O. McGinnis and Michael B. Rappaport warn in an important recent article, “Presidential Polarization”:
“now the president can adopt such changes unilaterally…. Domestically, Congress’s delegation of policy decisions to the executive branch allows the President’s administration to create the most important regulations of our economic and social life. The result is relatively extreme regulations that can shift radically between administrations of different parties.”
Florida Governor Ron DeSantis is running for president, and he has his own views on medical treatment for gender dysphoria: he says it amounts to making children “guinea pigs” and “mutilating them.” If elected, he’ll certainly take inspiration from Biden’s FTC move—maybe he’ll even encourage a few creative prosecutions under the federal Female Genital Mutilation law.
Alexander Hamilton supposed that “energy in the executive” would lead to “steady administration of the laws.” In the service of presidential culture-warring, that energy can mean whipsawing between “compulsory” and “forbidden” in four to eight-year cycles, depending on which party manages to seize the White House.
Worse still, as McGinnis and Rappaport note:
The imperial administrative presidency also raises the stakes of any presidential election, making each side fear that the other will enjoy largely unchecked and substantial power in many areas of policy.
That fear encourages the dangerous sentiment that every election is a “Flight 93 Election”: charge the cockpit, do or die. The relentless growth of federal power—and its concentration in the executive branch—has made our government a catalyst of social strife.
Having a president who actually stays out of the culture-war fray isn’t just a worthy goal: under current conditions it may be essential to the “domestic Tranquility” our federal government is supposed to ensure. But unless we expect them to refrain out of the goodness of their hearts, we’ll need structural reforms that limit their power to intervene.