Judge Andrew Napolitano: Who Writes the Laws?

8 mins read

It is distressing for those of us who believe that the Constitution means what it says to observe the destruction of liberty caused by vaccine mandates.

On one side of this destruction are those whose opposition to vaccines finds comfort in the executive orders of Texas Gov. Greg Abbott, who purported to prohibit private businesses in Texas, from mom-and-pop stores to Fortune 100 conglomerates, from requiring their employees to prove COVID-19 vaccinations in order to use the employer’s private property.

On the other side of this chasm are supporters of President Joseph R. Biden, who announced last month that he plans to order the Department of Labor to compel all employers in America of 100 or more persons to require their employees to prove vaccination against COVID-19 on the employer’s private property.

One edict prohibits behavior on private property. The other edict compels behavior on private property. Both violate liberty.

In neither case has the issuer of these edicts sought legislation to accomplish his goals.

Abbott wants to protect the employees’ rights of conscience who reject vaccines, but he has done so by invading the sovereignty of private property and business judgement. The former allows the legal occupier of private property to decline to obey any regulation not properly enacted into law that tells him how to use his property. The latter allows the owner of a business to make business judgements free from government interference.

The president, as well, has threatened — as of this writing, he has not published his executive order, nor has the Labor Department promulgated any regulations consistent with the threatened order — to interfere with private property and with business judgment.

Both the governor and the president will have violated basic rights in order to accomplish their goals, and neither has abided by the Constitution that both have sworn to uphold. Can they do this?

Here is the backstory.

When the Constitution was drafted at a secret convention in Philadelphia in 1787, the states that sent delegates were expecting proposed amendments to the Articles of Confederation. Instead, the convention produced a new constitution with vast opportunities for expansive federal power. However, the core of the Constitution is the separation of powers. This was not a novel idea, as it already existed in the 13 states.

The separation of powers requires that only Congress writes the laws, only the president enforces them, and only the judiciary decides what the laws mean and if they are consistent with the Constitution.

When the modern Supreme Court addressed this, it ruled that the separation was not created to protect the hegemony of each co-equal branch of government, but rather to prevent the accumulation of too much power in any one branch — at the expense of Americans’ personal liberty — by enabling each branch to be a check upon the other two.

The court has also held that the branches may not cede power to one another. The president cannot write the laws; the courts cannot enforce them; and Congress cannot interpret them — even by consent of the branches.

Tucked into the Constitution is the Guarantee Clause. This requires that the states have a republican (lowercase “r”) form of government. Stated differently, the states also must employ the separation of powers, with the same legislative, executive and judicial separation as the federal government.

Now back to the Texas governor and the president and their mandates. By issuing edicts that purport to regulate the use of private property, both Gov. Abbott and President Biden have violated the natural law of property and the Constitution. The natural law states that the very definition of private property enables the lawful owner or occupier of the property to exclude whomever he wants — including the government — from his property.

Thus, when the Texas Rangers or inspectors from the federal Department of Labor come onto private property to see if the Abbott order or the Department of Labor order — if it comes — are being honored, the occupier of the property — the employer — should not admit them.

What about public policy? That can only be established by the legislative branch of government, not by executive edicts, which brings us to the other grave violation committed by Abbott and Biden: the violation of the separation of powers.

Since only Congress can write laws that interfere with commerce, and in Texas, only the legislature can do so, these executive edicts are void. We have a conservative Republican governor and a liberal Democratic president effectively doing the same thing — regulating private property without legislation.

Of course, even if they had legislation, all regulations of private property are presumed void under the natural law and are unconstitutional unless the government can prove fault by the owner and harm to someone else. And self-ownership of our bodies precludes all compelled vaccinations, even those legislatively authorized.

Abbott has issued and Biden has threatened to issue edicts affecting the use of private property, then calling the edicts laws and engaging law enforcement to compel compliance. So, if you call a tail a leg, how many legs does a dog have? Most folks would say five. NO. The answer is four, because calling a tail a leg doesn’t make it a leg.

Calling an edict the law doesn’t make it the law. Edicts issued by the executive are unworthy of compliance if they purport to create new law or assault property rights or personal liberty; and law enforcement personnel, who took the same oath as the Texas governor and the president to uphold the Constitution, should decline to enforce them.

If we tolerate fundamental violations of our rights when they temporarily please us, we lack the intellectual honesty to resist all violations. Why do we tolerate any violations of natural rights or of the Constitution by those whom we have hired to protect them?

PHOTO: Joe Biden speaking with supporters at the Des Moines Register’s Political Soapbox. Photo by Gage Skidmore. Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0). 

Andrew Napolitano

Judge Andrew P. Napolitano is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. Now, Napolitano works as Fox News’ Senior Judicial Analyst, Judge Napolitano broadcasts nationwide on the Fox News Channel and the Fox Business Network, and lectures nationally on the U.S. Constitution, the rule of law, civil liberties in wartime, and human freedom. He also writes a week column, nationally syndicated by Creators.

Previous Story

Betsy McCaughey: Biden Caves to Unions Again, Sabotaging Consumers

Next Story

Veronique de Rugy: Fighting Illiberalism in Higher Education