Yesterday President Biden announced that he’d asked the CDC to look at extending the eviction moratorium which expired over the weekend. What was unusual about the statement was that Biden admitted the “bulk” of legal experts they had consulted agreed that a new extension would likely be struck down by the courts. That’s because the Supreme Court had narrowly allowed the previous extension to remain in place with Justice Kavanaugh writing that any additional extension would require “specific congressional authorization.”
Biden went on to say that even though the action would likely be deemed unconstitutional, he was going to try it in hopes that the it would take a while for the court to strike it down. “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,” he said.
An opinion piece at The Week published today argues that this kind of lawless behavior is going to come back to haunt Democrats:
Willfully breaking the law and relying on judicial delay to get away with it is an awful approach to governance. It is lawlessness…
I reached out to constitutional law expert Ilya Shapiro, legal scholar Walter Olson, and law professor Ilya Somin to see if that impression was correct. All three struggled to suggest a comparably brazen example from U.S. history…
As a candidate, Biden promised to take “aggressive action” to “maintain the rule of law, and to bring integrity back to our justice system.” Instead he’s hit upon a novel way to degrade the rule of law and make our justice system a joke. Future presidents will copy this exploitation if Biden pulls it off. A president can deport a lot of people, or build a lot of border wall, or drop a lot of bombs, or take down a lot of websites, or send a lot of weapons to a lot of dictators, or expedite a lot of federal executions “by the time it gets litigated.”
This seems like a pretty sensible response. You would think the party that spent the last four years worrying about “norms” would express some concern about what the Biden administration is doing. At a minimum, you would think the media would be echoing these comments, i.e. even if you like the ends, the means being employed are pretty worrisome.
Instead, what we’re mostly getting is garbage like this CNN analysis piece which basically praises Biden for knowingly violating the constitution for short term gain. The piece, by Stephen Collinson opens with an excuse: [emphasis added]
Even President Joe Biden doesn’t know whether his new federal eviction moratorium for renters is legal and sustainable. But crushing humanitarian and political pressure left him no choice but to take a chance on an emergency move…
Biden himself said on Tuesday that the new moratorium may not be constitutional, and is essentially an attempt to buy time to get backlogged funding out of state coffers and into the pockets of renters and landlords alike…
Politically, the spectacle of potentially millions of Americans being turned out of their homes would be an impossible one for any White House, let alone a Democratic administration built on the principle of using government power to alleviate the plight of poorer Americans. So, Biden had to do something…
Now at least, on housing, the administration has a viable political strategy that does not leave it looking helpless. Biden said that he hoped that the new plan would allow time for local and state governments to hand out more of the emergency rental assistance to those who need it.
If a court blocks the move, the White House can at least argue the President took bold action to protect needy Americans and can blame Republicans ahead of midterm elections for refusing to cooperate to stop citizens being kicked onto the streets.
I realize this is intended to be political analysis but it’s pretty remarkable that a) the analysis is entirely one-sided in defense of Biden and b) the author never once suggests the Biden administration made a bad choice by intentionally ignoring a clear and recent Supreme Court ruling. In fact, the kicker in this piece comes at the end where the author says the court’s ruling on the constitutionality of the CDC moratorium is a “snare” created by former President Trump.
Ultimately, the entire housing moratorium panic of course stemmed from legal reasoning by Kavanaugh, a justice installed as part of ex-President Donald Trump’s fashioning of a conservative majority on the nation’s top bench.
The sight of Democratic presidents struggling to deal with snares laid by a court specifically constructed to counter the aspirations of an activist liberal government could be repeated again and again in coming years.
This is pretty astounding. Kavanaugh could have ruled with four other conservatives that the moratorium was unconstitutional and ended it immediately. Instead he sided with Chief Justice Roberts and the three liberals to let the moratorium live on for a few more weeks. He basically handed Democrats a gift and now he’s being blamed for tripping up Biden? Is the author even aware that a series of lower courts had already reached the same conclusion, i.e. that the CDC has no authority to issue such a moratorium absent congress?
It turns out I’m far from alone in being stunned by the reasoning on display. Fox News published a whole roundup of reactions:
Four straight years of corporate media and liberal politicians (excuse the redundancy) pretending to care so deeply about the rule of law above all else — including those who served in past lawless administrations — only to now have headlines like this one above.
— Glenn Greenwald (@ggreenwald) August 4, 2021
The phrase "constitutional crisis" does not appear in this article. Weird. https://t.co/W3YbthVF4e
— Chief Impact Officer BT (@back_ttys) August 4, 2021
If crashing my truck into another liquor store will save one human human life from the deadly scourge of COVID, then by god no law is going to stop mehttps://t.co/grOcuf1FBR
— David Burge (@iowahawkblog) August 4, 2021
Both of the headlines below are for pieces by the same author. See if you can spot a difference.
When CNN likes you // when they don’t pic.twitter.com/sbd8u3F4Yt
— Drew Holden (@DrewHolden360) August 4, 2021
All we need now is for Chuck Todd to tweet out this CNN analysis along with his firm assurance that there’s no such thing as media bias.