Biden Tempts Judicial Fate With ‘Whole of Government’ Plans Without congressional approval, many of the administration’s efforts violate the law.
By Dave Yost
Biden Tempts Judicial Fate With ‘Whole of Government’ Plans
Without congressional approval, many of the administration’s efforts violate the law.
By Dave Yost
Jan. 3, 2024 at 12:56 pm ET
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PHOTO: CAROLYN KASTER/ASSOCIATED PRESS
It’s fashionable to talk about “red flags” in relationships, addiction, mental health and more. Here’s another red flag: a White House “whole-of-government approach.” It’s a sign that an executive branch of limited powers, supposedly operating under policy authorization from Congress, is about to do something without authority and in violation of the Constitution.
The Biden administration has promised whole-of-government approaches to promoting unions, climate change, cybersecurity, electric vehicles, cryptocurrency and restoring salmon runs to the Snake and Columbia rivers. In October the White House and the National Endowment for the Arts announced a whole-of-government conference on the pressing national emergency of arts and culture.
When an administration invokes whole of government, it is mustering all the agencies under its command to a preferred goal. Thus the Securities and Exchange Commission, designed to regulate stock exchanges, is pressed into service to battle climate change. The Environmental Protection Agency, designed to promote clean air, land and water, is dragooned into energy and industrial policy.
Such approaches haven’t fared well in the courts. Consider the administration’s whole-of-government approach to Covid-19. In Alabama Association of Realtors v. HHS (2021), the Supreme Court found that the Centers for Disease Control and Prevention’s eviction moratorium almost certainly overstepped its authority.
Even after that judicial warning shot, the administration imposed vaccine mandates on workers throughout the economy. The Occupational Safety and Health Administration mandate on employers of more than 100 would have affected some 84 million Americans. But an Ohio-led coalition of states and businesses won its case at the high court in National Federation of Independent Businesses v. Department of Labor (2022).
The Biden’s administration’s whole-of-government approach proceeds, undaunted by judicial rebuke. According to the White House, “President Biden and Vice President Harris have mobilized a whole-of-government effort in every sector of the economy—taking executive actions that will reduce greenhouse gas emissions.” This includes pushing financial regulators to take on environmental issues. The centerpiece of this initiative, the climate disclosure rule the SEC proposed in April 2022, has yet to be finalized, leaving businesses in limbo about the regulatory burdens they might shoulder.
But less-prominent agencies have also sought to become environmental regulators, including the Federal Highway Administration, which recently finalized a rule that would expand its mandate to promote highway safety into requiring that states create targets for greenhouse-gas reduction. Last month, 21 states (including Ohio) sued to block this rule, which is far outside the federal highway regulators’ lane.
The notion of a whole-of-government approach seems to have originated in the late 1990s in Prime Minister Tony Blair’s U.K., a country without a written constitution or separation of powers. The impetus was government departments not talking to each other, duplicating efforts or even working at cross purposes. But even in highly centralized Britain, this approach wasn’t greeted with unanimous enthusiasm. Journalist Simon Hoggart called it a “sneery, condescending phrase that has the dabs of the Downing Street neologicians all over it.”
Whatever its merits for a parliamentary system, in America it is a flashing dummy light on democracy’s dashboard. As the Supreme Court has made repeatedly and abundantly clear, administrative agencies exceed their authority when they seek to address major questions without clear congressional delegation.
To be sure, there are moments that call for a whole-of-government approach—think World War II. But Congress is part of government, too. Under the American system, marshaling all the resources of the government toward a single end requires that lawmakers and the executive establish that end together.
Mr. Yost, a Republican, is Ohio’s attorney general.
“Whole of Government” is another way of saying one party governance. SH