We now lean very heavily in the direction of a legalistic understanding of the Constitution. This is not a mistaken understanding but it is an incomplete one. As Ceaser notes, the political understanding is at least as crucial. It is an understanding that should leave us less willing to overlook obvious constitutional improprieties because they can technically be justified by obviously cynical and manipulative lawyerly gimmicks. These aren’t acceptable when President Trump engages in them and they aren’t acceptable when President Biden does. And whether a judge could be legitimately persuaded to allow them is not the only question that matters. At least as significant is the question of whether this is how our system of government is meant to work. Surely in this case the answer is no.

There is a further prudential problem with the president’s action that flows from this constitutional problem. By tying the practice of workplace vaccine mandates to his extra-constitutional overreach, he threatens to make such mandates (which have been imposed in many workplaces, including many in red states) all the more politically explosive and contentious. He threatens to entangle them in the public mind with constitutional improprieties when in fact they are perfectly proper in themselves, and this could make it harder for employers acting on their own to use such mandates to encourage vaccination. That would be tragic precisely because the president’s intentions may well be commendable. Pursuing good ends by bad means is not just an abstract moral failure; it can sometimes be a very practical failure of prudence.