Biden: This CDC action on the eviction moratorium is probably unconstitutional but will buy us some time

As Ed pointed out earlier today, the White House spent yesterday battling upset progressives over the eviction moratorium, which expired Saturday. AOC went on CNN yesterday and blamed the failure on moderate Democrats. She said what was needed was for Congress to be called back into session so they could hold a vote to extend the moratorium. But Nancy Pelosi basically said no to that. On a conference call she said the majority of Democrats felt it was on the White House to unilaterally solve the problem.

This afternoon President Biden gave a statement to the press saying he’d asked the CDC to take another look at the issue and the CDC would soon be announcing a new extension (rumored to be for another 60 days) which would cover about 90% of Americans.

But here’s where things get interesting. During his press conference, Biden admitted that after consulting with legal experts, most of them felt further CDC action would be deemed unconstitutional by the courts.

Biden told reporters on Tuesday afternoon that a decision from the CDC would be released later this afternoon. He acknowledged that the move would likely be subject to court challenge, and even said scholars he consulted felt the measure was likely not constitutional.

“I have been informed [the CDC is] about to make a judgment as to potential other options. Whether that option will pass constitutional measure with this administration, I can’t tell you. I don’t know,” Biden said. “The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster … But there are several key scholars who think that it may and it’s worth the effort.”

If the “bulk” of the legal experts consulted on this agreed it would not pass muster, why is the administration doing it? Again, Biden explained that the (likely) unconstitutional move would buy them some time until the Supreme Court could shut them down again.

“Whether that option will pass constitutional measure [he meant muster] with this administration [he meant SCOTUS] I can’t tell you. I don’t know,” Biden said. He continued, “There are a few scholars who say it will and others who say it’s not likely to, but at a minimum by the time it gets litigated it will probably give some additional time while we’re getting that $45 billion dollars out to people who are in fact behind on the rent and don’t have the money.”

This is a pretty interesting approach to executive power, i.e. keep doing something the Supreme Court has already said you can’t do in the hopes that it takes them a while to tell you no all over again.

In this case, a series of courts have all ruled that the CDC does not have authority to create or extend a nationwide eviction moratorium. Then at the end of June SCOTUS ruled that the lower courts were correct but Justice Kavanaugh agreed to let the moratorium continue for a few more weeks only because that was going to be the end of it. However he was very explicit that the moratorium could not be extended again without “specific congressional authorization.” It’s barely been a month and the CDC is set to announce another 60 day moratorium.

In his presser Biden seemed to be suggesting that this wouldn’t be framed as an extension or reinstatement of the previous moratorium but something new and different, therefore justifying another long slog through the courts. But we already know this is nonsense because Biden has already told us this is just a gambit for time.

We had so many national injunctions put in place by progressive courts during the Trump years. Now would be a good time for some red state AG to file for an immediate injunction against this new CDC nonsense until SCOTUS can make it clear to the Biden administration that they weren’t kidding the last time.

If Democrats want to extend the moratorium there is a constitutional way for them to do it: Hold a vote in Congress. Here’s Biden’s explanation of the Dems’ current plan.


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Jazz Shaw 12:01 PM on November 30, 2022