I found it, all of it, and all it took was some motivated sleuthing in decades-old statutory text.
I found it, all of it, and all it took was some motivated sleuthing in decades-old statutory text.
I nspired by the brilliant and resourceful lawyering recently exhibited by the Biden administration’s Office of Legal Counsel (OLC) in justification of the president’s mass student-debt transference, I spent a few moments this morning rifling through some other federal laws that, while ostensibly unrelated to broader conservative legislative aims, may contain the key to a wholesale alteration of the statutory landscape by the next Republican president. Naturally, I cannot promise creativity on the scale displayed by the OLC — having forgone law school on the grounds of cost, there are limits to my comprehension — but, via a little squinting, some well-developed motivated reasoning, and a near-total lack of respect for America’s constitutional order, I can offer some insights that those of a generous disposition might at least deem adjacent to the OLC’s monumental achievement. Famously, James Madison argued that if the executive branch can’t get his own way, he should trawl through emergency legislation in search of a tenuous pretext, and it is in that spirit that I offer up my own analyses of the law.
First, we have the Antiquities Act of 1906. On the face of it, this law was designed to protect Native American ruins from poachers and private collectors. But, if you dig a little deeper, you’ll find that it enacts a national ban on abortion. At the outset, the Antiquities Act records that “The President may, in the President’s discretion” — which is obviously extremely important, because it confirms that the president can act in this realm without Congress. The law’s plain text cites “objects of historic or scientific interest” — a grouping that includes unborn children, who are very scientifically interesting and, if left unmolested, will eventually become historic — and it is limited in scope to “land owned or controlled by the Federal Government to be national monuments,” which although not a perfect match for “all of America,” should be read in concert with the general-welfare clause to convey plenary power. Taken together, these three provisions clearly empower the executive branch to prohibit the termination of unborn life. Or, as the OLC might put it: “We conclude that the Act grants that authority.”
Next, I looked at the Jones Act — also known as the Merchant Marine Act of 1920. This one is about national concealed-carry reciprocity, as is confirmed by its long preamble, which refers to “national defense,” includes the phrase “in time of war or national emergency” and, elsewhere, features a line that reads, “ultimately to be owned and operated privately by citizens of the United States.” A cynic might propose that these snippets provide an insufficient basis for the president to declare that each state must accept concealed-carry permits issued by other jurisdictions, but I must disagree. Like the OLC, I reject any “purported limitations on the scope of relief that may be afforded that are contrary to the clear text of the Act.” Think about it. What helps “national defense”? Guns. Which guns are “ultimately to be owned and operated privately by citizens of the United States”? Personal firearms. And what are we currently in? As the Biden administration has confirmed, we are currently in “a time of war or national emergency.” Ergo, the president can order national concealed-carry reciprocity without congressional approval.
Finally, I studied the United States Grain Standards Act, which, properly understood, empowers the FDA to offer anyone who owns a pickup truck a hefty tax cut. In its opinion on student loans, the OLC confirms that “the Secretary may reasonably conclude that class-wide debt relief in these circumstances is appropriate.” And so it is here. In fact, this one is perhaps the most straightforward of all. Repeatedly, the United States Grain Standards Act records that, “The Secretary may, to the extent determined appropriate by the Secretary,” or “the Secretary shall,” and includes the license, “as defined by the Secretary,” so it obviously allows for a great deal of executive discretion. And, if that weren’t enough, the law’s other provisions slam the door closed. The United States Grain Standards Act makes multiple references to “geographic areas” (the United States is a geographic area), it recognizes that the law applies to “equipment or instruments” (that covers pickup trucks, naturally), and it contains frequent references to “subsections” (a word that is also used in the tax code). QED.
To make sure that I wasn’t out over my skis on any of this, I sought out Dr. Myron Pata-Smith, of the Greg Sargent School of Law in Washington, D.C., and, after a little coaching, Dr. Smith said, “Certainly, you’re right about all of these — every single one.” So there we have it. Straightforward from here.