WaPo editors: What would Dems have done if Trump defied SCOTUS -- like Biden just did?

AP Photo/Evan Vucci

No kidding. Even Joe Biden all but acknowledged that extending a moratorium that the Supreme Court enjoined over its likelihood to consider it unconstitutional was a desperation move. Bypassing Congress to issue unconstitutional orders from bureaucrats is the kind of “darkness” in which democracy dies, no?

The Washington Post editorial board didn’t go quite that far, but they did produce a surprisingly strong rebuke:

The CDC on Tuesday tried to get around this ruling by issuing a new ban that covers only areas “experiencing substantial and high levels of community transmission.” This amounts to 80 percent of counties. Advocates argue that the rise of the delta variant may have changed the court’s thinking and that the new policy is more closely tailored to the worsening public health situation. They also argue that Justice Kavanaugh may uphold another temporary policy while federal rental aid money is still only trickling out.

That is unlikely. The law the CDC relies on to justify its unilateral eviction ban authorizes the agency to impose measures such as “inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals,” not to freeze the rental housing market month after month in nearly the entire country. Many landlords are themselves desperate, on the hook to keep up their properties, pay taxes and service loans whether their tenants pay their rent. Justice Kavanaugh in June clearly signaled willingness to disregard their plight — and the law’s limitations — for another few weeks, not months.

It is not the Biden administration’s fault that states have been slow to get federal rental aid to needy Americans. But the administration’s only reasonable options were to push states to get their acts together and to request that Congress give the CDC the authority it needed to reimpose an eviction ban. Indeed, the onus remains on states and localities; they cannot count on the new moratorium, issued on shaky legal ground, to absolve them of responsibility to aid renters.

True enough. Biden’s action actually harms the situation further by delaying a rational response from Congress, which is as always happy to duck tough votes. The onus doesn’t solely belong on states and localities, however. Congress created the moratorium, and it has the responsibility to provide a rational off-ramp for that extraordinary intervention. Shooting cash out of a cannon and then telling states to figure it out is an abdication of responsibility for the situation.

Give the editors credit for a strong effort here, nonetheless. They even indulged in the obvious “if a Republican did this” argument to scold Democrats, and perhaps even some of their colleagues in the media:

If the Trump administration had ignored a direct warning from the Supreme Court, Democrats would rightfully line up to condemn the president. Mr. Biden does not get a pass on the rule of law because his heart is in the right place.

I’d argue the point about Biden’s heart being in the right place, but YMMV. This order from the CDC was intended to extricate Biden from criticism over fumbling the Supreme Court’s deadline for dealing with the moratorium. It does nothing to solve any problem; it just delays the reckoning with the perverse incentives set up by the moratorium, and worse, it’s at the expense of the landlords who have been waiting for over a year to recover their income. Many of those are not corporate housing companies but small-scale owners of rental properties who aren’t seeing any moratoria on mortgage payments.

Speaking of perverse incentives, this has made it tougher for low-income renters rather than easier. Anecdotal but understandable:

Landlords also want courts to block this before it gets any older, filing suit in federal court to force an end to CDC extensions:

The Alabama and Georgia chapters of the National Association of Realtors filed a motion in federal court to vacate the ban that the Centers for Disease Control and Prevention ordered Tuesday. The same groups led a legal challenge against the prior federal eviction moratorium that expired Saturday — a lawsuit that prompted the Supreme Court to cast doubt on the CDC’s authority.

The real estate groups — which have warned that their members are facing substantial financial losses from the moratorium — said in a legal filing that the CDC caved to a “tidal wave of political pressure” from outraged Democrats when it revived the eviction ban despite clear warnings from judges who said the agency lacked the power to enforce it.

“The CDC appears to have acted in bad faith,” the groups said.

Everyone involved in this latest illegal extension of CDC’s already-deficient moratorium has acted in bad faith. The Supreme Court should make that clear ASAP in order to force Congress and the White House to act within their constitutional authority and return to actual governance rather than responsibility-evading punts.