How the moratorium got extended: Pelosi told Biden that Harvard Professor Laurence Tribe would back it (Update)

AP Photo/Pablo Martinez Monsivais

From the first moment I heard about this, I just knew that the whole thing was going to come down to some far left legal expert who had decided the ends justified the means. Sure enough, that seems to be exactly what happened. Today Punchbowl News reports that it was Nancy Pelosi who worked behind the scenes to convince Biden and his staff that they could ignore the Supreme Court and extend the eviction moratorium.

Over several days, Pelosi engaged in a frantic round of phone calls and lobbying, pressing President Joe Biden and senior White House officials to respond. Pelosi spoke directly with Biden three times over the weekend and into Tuesday, making a case that the White House found compelling…

During one conversation with Pelosi, Biden said his legal advisers were warning him that he couldn’t extend the moratorium due to a June 29 Supreme Court ruling. The high court had let the moratorium stand in a 5-4 decision, but Justice Brett Kavanaugh said the CDC had “exceeded its existing statutory authority” and Congress must act to extend the ban. Biden asked Pelosi if she had any legal experts with a different take. Pelosi provided Biden with several names, including Laurence Tribe, the well-known Harvard Law professor.

The Washington Post reports that Biden then told Chief of Staff Ron Klain to call Tribe. That call happened Sunday:

The private phone call between Klain and Tribe — held Sunday amid a national outcry over the expiring moratorium — set in motion a rapid reversal of the administration’s legal position that it could not extend the eviction ban. Tribe suggested to Klain and White House Counsel Dana Remus that the administration could impose a new and different moratorium, rather than try to extend the existing ban in potential defiance of a warning from Supreme Court Justice Brett M. Kavanaugh, the person said…

“As important as Larry was,” the CDC went forward “because government lawyers got comfortable with this theory,” said the person, who spoke on the condition of anonymity to reveal details of private conversations…

Tribe added: “It was an incredible whirlwind. It was extremely intense, and I feel very lucky to have been asked by anybody what I thought about this, because a lot of people would have been needlessly hurt.”

So is this argument by Tribe plausible? Probably not. The argument he’s making is that it would be impossible to extend the previous moratorium beyond July 31 given the opinion issued by Justice Kavanaugh. Kavanaugh’s opinion of June 29 is pretty short. Here it is in full: [emphasis added]

I agree with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium. See Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014). Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application to vacate the District Court’s stay of its order. See Barnes v. E-Systems, Inc. Group Hospital Medical & Surgical Ins. Plan, 501 U. S. 1301, 1305 (1991) (Scalia, J., in chambers) (stay depends in part on balance of equities); Coleman v. Paccar Inc., 424 U. S. 1301, 1304 (1976) (Rehnquist, J., in chambers). In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.

So Kavanaugh joined with Chief Justice John Roberts and the three liberals on the court to allow the moratorium to remain in place until it was already set to expire on July 31. However, he warned that no further extension could be granted by the CDC without congressional action. Why? Because the CDC had no authority to issue a “nationwide eviction moratorium” in the first place.

Tribe’s take on this, from what I can gather, is that Kavanaugh was forbidding an extension of the existing moratorium but didn’t rule out the possibility of a brand new CDC moratorium. The new moratorium is different (allegedly) because it’s not nationwide but is limited to the ~90% of the country where COVID cases are on the rise because of the delta variant. I’m not a constitutional attorney so I may be reading it wrong but it appears that Tribe’s argument really rests on the word “nationwide.” The new moratorium is not quite nationwide therefore it’s an entirely different question for the courts.

Heritage Foundation research fellow Joel Griffith doesn’t buy it. He told the Post, “The Centers for Disease Control does not have power to issue such a moratorium.” It seems unlikely that Justice Kavanaugh will agree that a 10% difference in coverage area is the difference between something the CDC can do and something it cannot do. This looks more like a semantic game designed to buy an administration two more months to avoid a PR nightmare.

In fact, that’s basically what Biden admitted the other day. “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. And to be fair, that reasoning isn’t that much different from Kavanaugh’s own reasoning. Notice that in his opinion (above) he said, “Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time…” In other words, Kavanaugh felt the moratorium was unconstitutional but allowed it to continue so states could get more rental assistance money out the door. Biden also suspects this new gambit is going to wind up being deemed unconstitutional but he’s doing it to give more time to get that same money out the door.

This is all being treated as a big win for the far left. Instead of moaning about the loss of Nina Turner, the Squad is rejoicing over Cori Bush’s protest which, along with Pelosi’s phone calls, helped pressure the White House into this. It’s a convenient fiction the left and the media will be happy to go along with for now, but it won’t solve the underlying problem which is that the economic recovery hasn’t been strong enough to put people in a position to pay their rent.

Update: My reading of the new moratorium gambit was confirmed by Laurence Tribe in this Politico story. The idea that this is a new moratorium and not an extension of the previous one all hangs on the fact that this one isn’t “nationwide.”

While the earlier eviction ban applied nationwide — something Kavanaugh pointedly noted in his brief opinion in June — the new one applies only in areas of substantial or widespread Covid-19 transmission. “The initial moratorium was nationwide and not targeted in health-specific terms that are of a sort that fit the mandate of the CDC,” Tribe said.

The new pandemic development is the recent surge in cases, powered by the more transmissible Delta variant. “It’s a question of whether the CDC can act in response to the concern about the Delta variant and target its actions,” Tribe added.

Attorneys for realtors who brought the case say that’s nonsense.

The Realtors’ attorneys disputed that in Wednesday night’s submission. “The CDC’s semantic recasting of the latest extension — which covers 90% of renters across the country, while leaving intact its ability to ratchet up to 100% — is a distinction without a difference because it has no bearing on the CDC’s legal authority,” they wrote.

Tribe, for his part, seems to know it but doesn’t care.

Biden hinted as much in Tuesday’s remarks, saying he hoped the revived moratorium could give renters a few months of relief while legal challenges were heard in the courts.

“To make that impossible because of something of a legal cloud over what the administration opted to do would be quite irresponsible,” added Tribe.

Here’s hoping Justice Kavanaugh delivers a special message to Laurence Tribe in his next decision.