Can Biden Use Executive Privilege to Confront the SCOTUS’s Banning of Affirmative Action?
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The debate surrounding affirmative action has been ongoing for decades, and the policy has faced numerous legal challenges in recent years. The Supreme Court of the United States (SCOTUS) has been a key player in determining the fate of affirmative action policies, which aim to promote diversity and counteract historical discrimination. With this in mind, it raises the question: can President Biden use his executive privilege to protect affirmative action amidst the recent SCOTUS ban?
Understanding Executive Privilege
Executive privilege refers to the power granted to a president that allows them to withhold information or refuse to enforce certain laws, usually on grounds of national security or protecting vital government interests. Throughout U.S. history, presidents have used this privilege to varying extents – from shielding sensitive foreign policy information to preventing aides from being subjected to subpoenas.
Role of SCOTUS in Affirmative Action
The primary role of the Supreme Court is to interpret the constitutionality of laws and policies. Over the years, SCOTUS has issued numerous decisions on affirmative action, often with divided opinions among justices. Some landmark rulings include Regents v. Bakke (1978), Grutter v. Bollinger (2003), Fisher v. University of Texas at Austin (2016) and Students for Fair Admissions, Inc v. President and Fellows at Harvard College (2023). The balance between promoting diversity and avoiding unconstitutional practices remains a complex issue for the Court.
Biden and Executive Privilege
While President Biden has shown strong support for affirmative action policies throughout his political career, using executive privilege to confront the SCOTUS decision banning affirmative action may not be within his legal power. In cases where SCOTUS declares such policies unconstitutional, a presidential intervention by invoking executive privilege may not be possible. This is due to the Court’s role as the ultimate interpreter and arbiter of constitutional matters.
It is important to distinguish between executive privilege and executive orders, which are directives issued by the president to manage federal operations. While Biden could potentially issue executive orders to implement or preserve certain aspects of affirmative action, such orders are also subject to judicial review, including potential SCOTUS challenges based on constitutionality.
Conclusion
Although Biden’s administration is dedicated to advancing diversity and fighting discrimination, the legal standing of affirmative action ultimately depends on the decisions of an increasingly conservative Supreme Court. While the President can use his political power and influence to address elements of systemic inequality, it is unlikely that executive privilege can be employed as a direct countermeasure against the recent SCOTUS ruling banning affirmative action. Therefore, the future of these policies remains uncertain as they continue to navigate through evolving legal frameworks and societal debates.