This is the aspect of his moratorium chicanery that I find most breathtaking, the frank admission that he’s trying to exploit the legal process to extend a dubious executive order. Most everyone else has focused on the substance of what the White House did, replacing a certainly illegal moratorium order with a new one which they have every reason to know is almost certainly illegal.
And that’s appalling. But the problem could be solved if the courts reacted quickly by scheduling an expedited hearing on the numerous challenges to the new order. When the president is as candid as Biden is here in admitting that he’s gaming the judicial system to keep an illegal measure in place for as long as he can, they have a duty to stop him by putting all other business on hold to consider the merits of that measure. If they don’t, they’re letting him get away with it.
Look at it this way. If this court fight drags out for six months and SCOTUS finally rules that the new moratorium is also illegal, as everyone expects, what’s to stop the White House from drafting yet another moratorium that’s a tiny bit different from the previous one and litigating the lawfulness of the new order for six months after that? Biden is engaged in litigation that’s dilatory by design, which he admits. It’s essentially frivolous. The courts have to show him that that won’t work.
Biden on the eviction moratorium:
“I can’t guarantee you the court won’t rule that we don’t have that authority but at least we’ll have the ability to, if we have to appeal, to keep this going for a month-at least. I hope longer.”
— Daily Caller (@DailyCaller) August 5, 2021
“It’s probably illegal but at least freeloading tenants will get a few more months of rent-free housing out of it.” That’s what he means. That’s the position he feels obliged to take to keep the Cori Bush wing of his party onside.
After he confessed a few days ago to reporters that the new moratorium is unlikely to pass constitutional muster, his aides huddled with him and reminded him that courts won’t react well to the president knowingly acting in an illegal way. So now he’s back to pretending that there’s a meaningful debate over whether the new CDC order is likely to be upheld or not. In fact, he claimed today, not only is there a real debate but the balance of opinion is supposedly on his side:
Biden on his eviction moratorium extension: “I got on the phone and contacted a number of constitutional scholars… and there was a split.”
Says the “consensus” of the scholars he’s consulted the most is “we think you have the authority… but, in this court, who knows.”
— Andrew Solender (@AndrewSolender) August 5, 2021
Nonsense. Apart from Laurence Tribe, who was destined to tell Biden whatever he wanted to hear in this case to provide him with thin legal cover to proceed, the closest I’ve come to a lawyer who thinks the new moratorium might have merit is Jack Goldsmith. And even he believes it’s likely to be struck down:
All sorts of interesting issues, including: (1) de facto merits ruling via shadow docket; (2) can/should DOJ defend Prez order when it is highly confident Court will say no;
— Jack Goldsmith (@jacklgoldsmith) August 5, 2021
Why, instead, did Biden Team choose to appear lawless by saying it lacked & needed Cong. authority; allowing POTUS to suggest he knew what he was doing was unconstitutional; and relying on “outside scholars” for support (which implies, misleadingly, that DOJ had a problem).
— Jack Goldsmith (@jacklgoldsmith) August 5, 2021
The proper response to that comes from law student Thomas Koenig, writing today at the Bulwark. Biden took office promising a return to presidential “norms” and respect for civic institutions. Abusing the judicial process to defend an order whose legality he himself doesn’t believe in is a total betrayal of that. And the fact that he’s doing it because Congress is too cowardly to exercise its authority over the issue is the icing on the cake.
His decision will further erode the Supreme Court’s legitimacy. The president has buoyed his base’s hopes with a policy win that will prove fleeting, and when his base is stripped of that win by the Supreme Court, they will conclude that it’s the Supreme Court that is their problem. The Court’s legitimacy will be weakened. Don’t be surprised if calls for court packing and other norm-breaking proposals resume.
And the president’s action only worsens the unfortunate buck-passing dynamic among the branches of government—especially Congress’s eagerness to cede legislative authority to the executive branch. A president who is courageously committed to institutional norms would not assist Congress in its dereliction of duty. The disappearance of congressional strength atrophies our self-governing muscles. It cuts against piecemeal compromise, and it exacerbates fear of the other side. We’ve forgotten how to debate and work with one another—in the public square and in Congress. With his action this week, President Biden is not pushing back against this worrisome erosion of our self-governing capacities; he’s adding to it.
“Specifically, and in blatant violation of his solemn duty to execute the laws faithfully, Biden has usurped Congress’s legislative authority and declared the power to legislate,” writes Andy McCarthy. “He is running roughshod over the separation of powers, which is the foundation of our constitutional framework, limiting power and preserving liberty.” His old boss Barack Obama did the same thing when he seized Congress’s immigration power to legalize DREAMers under DACA. But Obama didn’t face a recent Supreme Court ruling directly on point that should have steered him away from attempting such a thing. And his DACA order didn’t come pre-packaged with a dilatory legal strategy designed to keep the program up and running while meritless litigation played out in court. Even if, ah, it’s sort of worked out that way in practice.