President Biden finds himself in a familiar spot: Put into a desperate situation that has friendly voters clamoring for action, he has announced a policy for which his legal authority is questionable and is daring the courts to stop him.
This last happened with the federal eviction moratorium that Biden extended even after courts signaled that the Centers for Disease Control and Prevention were on thin ice legally. Predictably, the policy was overturned by the Supreme Court. Now Biden may be traveling down the same road with an edict that private companies with at least 100 employees effectively require COVID-19 vaccination.
In both cases, the situation was dire. The Delta variant and vaccine hesitancy are fueling a resurgence of the pandemic. Something must be done. Most of what Biden ordered, such as mandating the vaccine for federal workers and increased fines for maskless airline passengers, fell within his presidential purview. But the fines for big private companies are at least vulnerable to legal challenges.
The tone with which Biden went public with this decision was equally problematic. His frustration with anti-vaccine sentiment and yes, the "bully" Republican governors who want to issue anti-mandate mandates is understandable. But while his expression of righteous indignation may make already vaccinated supporters feel good, it only deepens the sense among vax holdouts that this is about red/blue state rivalry more than public health. Reports like this about the postal service possibly being exempt won't help.
That's not to say everything Biden is doing on this front is bad or that all the pushback he is getting is rational. Much of this is beyond a president's control. And maybe the courts will let his more dubious actions stand because of the emergency. Similar fortune befell his former boss, Barack Obama, whose Deferred Action for Childhood Arrivals program for some young undocumented migrants has been upheld despite being something that really needed to be created by Congress.
But if it is overturned, Biden will add the conservative majority on the Supreme Court to his list of COVID villains alongside certain ambitious GOP governors and millions of the people he needs to reach. To what end?