Supreme Court

Biden Admits New CDC Eviction Moratorium Runs Counter to 'the Bulk of the Constitutional Scholarship'

The Supreme Court will likely rule against Biden’s executive gambit.

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Say this for President Joe Biden: He's willing to admit that the actions of his own administration might not always pass the constitutional smell test. Speaking to reporters this week, Biden announced that a new federal eviction moratorium was coming soon from the Centers for Disease Control and Prevention (CDC). "The bulk of the constitutional scholarship says that it's not likely to pass constitutional muster," Biden acknowledged. "But there are several key scholars who think that it may and it's worth the effort."

A majority of the U.S. Supreme Court is likely to agree with the bulk of scholars that Biden declined to heed. On June 29, a 5–4 Supreme Court let the previous CDC nationwide eviction moratorium remain in place until it was set to expire on its own on July 31. Four justices—Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett—would have blocked the moratorium then and there. The swing vote was cast by Justice Brett Kavanaugh, who voted to let the moratorium remain in place, but only because "the CDC plans to end the moratorium in only a few weeks…and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds." However, Kavanaugh stressed, "in my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31."

In other words, five justices have already strongly indicated that any new CDC eviction moratorium will meet its doom when it lands on the judicial chopping block.

So why is Biden still pressing ahead? He gave two, somewhat different explanations. The first was that he had found "several key scholars" willing to sign off on this new gambit. Who are they? One of them is Harvard law professor Laurence Tribe, a liberal legal icon, who confirmed to Politico that he had been advising the White House on this matter. "I think the odds [of success] are greater this time around," Tribe told Politico. The new CDC eviction moratorium was crafted in response to the rise of COVID-19's delta variant, Tribe argued, and thus "targeted in health-specific terms that are of a sort that fit the mandate of the CDC."

It's difficult to imagine this position of Tribe's actually attracting five votes on the current Supreme Court, but I suppose you never know.

Biden's second stated reason for pressing ahead with a new CDC eviction moratorium was not so much a legal rationale as it was a raw political calculation. "At a minimum," Biden said, "by the time it gets litigated, it will probably give some additional time while we're getting that $45 billion out to people who are, in fact, behind in the rent and don't have the money." In effect, Biden has more or less accepted that he has a legal loser on his hands and is now just trying to buy more time for Congress and the states to do their jobs.

Perhaps Biden should be listening to a different liberal Harvard law professor, Noah Feldman. Writing at Bloomberg, Feldman persuasively faulted Biden for "alienating the court and its new swing justice, Brett Kavanaugh." According to Feldman:

The fact that Kavanaugh was offering both pragmatism and a compromise deserves recognition and acknowledgment. The authority of the CDC to issue a moratorium on a social policy issue with an indirect connection to preventing disease was always in question, and reasonable people could differ on it. By allowing moratorium to expire and inviting Congress to act, Kavanaugh was making an entirely sensible judgment.

Congress could and should have acted. For it to create such a moratorium on evictions would be lawful; and Kavanaugh, in his statement, foreshadowed that he would vote to uphold such a ban, whatever his more conservative colleagues might do. There was a simple solution available, and Kavanaugh laid it out.

Instead, Biden is now moving ahead with an executive action that runs counter to swing vote Kavanaugh's clear statement, that rejects "the bulk of the constitutional scholarship" that Biden himself says he consulted, and that the Supreme Court is very likely to rule unlawful in the end. All things considered, Biden's approach would seem to be both legally and politically ill-advised.

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  1. For it to create such a moratorium on evictions would be lawful

    No it wouldn’t. It would be unconstitutional. People in robes saying black is white doesn’t make it so.

    1. IMPEACH!

      1. I was about to say that if Biden’s predecessor had done something similar, the Internet would’ve exploded with 99% of America’s law professors tweeting out at this was an impeachable offense call for his immediate removal from office.

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    2. What’s almost certainly going to end up happening is that the government/taxpayers are going to end up bailing out all the free-riding deadbeat renters of America, though there will probably be a big fight over how much the landlords are owed. It’s irresponsible and immoral as hell, but it’s also legal. If congress is allowed to bail out the banks, it’s pretty well established that they can bail out anyone.

      Unfortunately, the n the process they’re going to create a whole new class of fraud, as many con artists will falsely claim to be landlords that are entitled to get a piece of that pie.

      1. Unfortunately, the n the process they’re going to create a whole new class of fraud, as many con artists will falsely claim to be landlords that are entitled to get a piece of that pie.

        And distort property values in perpetuity, and not just rental property. Why get into a house for 5, 10, or 30 yrs. when the state can declare free rent at any moment? Why build apartment complexes?

    3. I’m baffled no court has stopped it yet. Biden’s only explanation for it should lead to an instant injunction nationally.

      1. Because he’s not named Donald Trump.

  2. He’s lying. He knows it’s not constitutional, but he’s doing it anyway.

    1. IMPEACH!

      1. I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

        I agree. Impeach. There will not be a vote on that, though, until the House changes hands.

        1. “to the best of my Ability,” Perhaps he lacks ability.

    2. “I know its illegal, but I’m going to keep doing it for as long as I can get away with it”

      Yet another reason to end immunity for all public servants

      1. If each landlord filed a civil suit against Biden some DAs and some judges would let that go through. Not dissimilar to how Scientology got the IRS to recognize them as a religion for tax purposes.

    3. He’s not even lying about it. He’s playing this issue so he comes out getting points for sticking up for the downtrodden.

      1. Youre an idiot.

      2. Bidette’s gonna bidette.

    4. “So why is Biden still pressing ahead?”

      Because he can. There is no penalty for going against SCOTUS before or after a ruling. And, it takes way too much time to obtain a ruling on immediately effective issues such as this.

      By the time they rule and, the edict rescinded, it will be too late for to many.

  3. So he violated his oath of office, which is an impeachable offense.

    The only downside is his sociopathic protege is worse than him.

    1. IMPEACH!

    2. Yeah but she’d lose an election to anyone.

      1. So would he, unless it’s fortified by the most extensive and inclusive vote fraud team ever assembled

      2. if only we had elections in America.

    3. The VP always has the same job — to make the other side think twice about trying to get rid of the Prez. Apparently Pence was overqualified.

    4. “But there are several key scholars who think that it may and it’s worth the effort.”

      Come on guys, how are we going to know if we don’t try? It’s not like elected officials ever suffer any consequences for knowingly violating the constitution, so why the fuck not?

      1. Exactly.

        But, it should at least require a plan for failure as in how to compensate the damaged parties should this be ruled unconstitutional. Without that, they’re experimenting on the backs of hard working citizens.

  4. ” In effect, Biden has more or less accepted that he has a legal loser on his hands and is now just trying to buy more time for Congress and the states to do their jobs.”

    Interesting that an allegedly libertarian site would classify “paying your rent for you” as a “job” of Congress or State governments.

    1. Not to mention that fixing the administration/CDC’s fuckup isn’t exactly any given state’s job either.

      1. Right.

        And the only action Congress should take is to make whole all the landlords the CDC illegally took property from.

        It’s a sad day when not even libertarians can stand up for property rights, especially as they relate to the federal government trampling on them for 18+ months. They recommend a slightly less absurd Harvard dipshit’s opinion that if Congress were to write this into law it would be fine. No it wouldn’t, and we shouldn’t be promoting people who think it is.

        1. Congress should also look to end the CDC entirely. They have grown beyond their competence.

      2. If we had a real “Justice” Department, they would be prosecuting the CDC executives for administrative overreach.

  5. In our constitutional republic, SCOTUS interprets the constitution.

    SCOTUS has already said it’s unconstitutional.

    Biden knows this, and is doing it anyway.

    Why do you insist on pretending that Biden’s going out on a limb, taking a chance on something that may not pass constitutional muster?

    It already failed constitutional muster. He doesn’t care.

    I spent the last four years where “the president is lying” was the only topic discussed, from the inauguration.

    Why the sudden hesitance to call a spade a spade?

    Man up: he’s lying and violating his oath of office. Be man and say it.

    1. You seem to be confusing the messenger with the message. Reason isn’t proposing an extension of the eviction moratorium; they are just reporting on it.

      1. He’s explicitly criticizing the messenger for its limp delivery of the message, dumbass.

      2. The stop-the-steal crowd will always hate Reason for being critical of Dear Leader. So it doesn’t matter what they report or how they report it, the same bitches will whine and complain and shout and cry about how biased Reason is, and they will hold this grudge until they die.

        1. Oh, you’re back to trolling. Good to know. That 3 days off must have been refreshing.

        2. TDS-addled pieces of shit will always make the conversation about their obsession.
          Fuck off and die, TDS-addled asshole.

    2. Why? Because he isn’t a spade. He’s a shovel. A BIG shovel!

      How do you think he throws his power mongering bullshit around?

      A spade would just be anemic.

    3. Years of hearing about the Rule of Law and Biden does this. It’s one thing to argue actions are necessary in an emergency. It’s another thing to do this 18 months later when unemployment is under 6%

  6. Well at least Biden didn’t have a call with a foreign leader that unelected bureaucrats disagreed with…

    Or we would have an impeachment to justify.

    1. Remember all those crazy tweets Trump sent out pledging to violate The Constitution?

      Remember when Rex Tillerson called Trump a fucking moron and then resigned? Good to know all of Biden’s staffers consider him a genius and are standing firmly beside him.

      1. No. Remind us. As I recollect, Trump was actually more concerned not to violate the Constitution than any other recent President.

        Sad to see that those closest to power now pretend their ticket to ride isn’t senile. Their ride will end soon, and most of them will never work again after the well-deserved blow to their reputations.

  7. Evictions should resume with the first one to occur at 1600 Pennsylvania Avenue.

  8. I like how everyone assumes the Supremes will overturn this. Roberts is a moral coward and will probably either not take the case at all, or will cut it so narrowly that it will stand anyway.

    1. You left out the ‘covitaking’ option.

      1. Or covitax.

        Clear 3rd amendment violation, but it’s not like we have a rule of law anymore

    2. He already let it stand once and was joined by his mini-me Kavanaugh.

  9. Instead, Biden is now moving ahead with an executive action that runs counter to swing vote Kavanaugh’s clear statement …

    Expect a thoroughly debased and defeated “well, people are now dependent on this moratorium program and overturning it would sow far too much chaos and hurt too many people so, while technically unlawful, nothing in the Constitution prohibits acts of compassion,” from Roberts and Kavanaugh.

    1. Kavanaugh got rolled because he’s a swamp dwelling idiot. You’d think after the way he was treated during his confirmation that he would understand that the Democrats will never act in good faith.

  10. “He’s willing to admit that the actions of his own administration might not always pass the constitutional smell test.”

    And Biden’s a big fan of the smell test.

    1. The Hair Sniff test?

    2. strawberry Suave is his fave.

  11. One of the sad things here is that this will drive small landlords out of business. Consolidating more of the market with large corporate apartments.

    Why do they love creating so much income inequality?

    1. the sad thing is this is an illegal, immoral policy. It doesn’t matter who this impacts. The government has no right to force you to house anyone

      1. It’s truly fucking evil. It kicks property rights right in the dick.

        Countries that have ignored property rights and rule if law don’t have a good track record.

      2. I only wish everyone understood that. The noise on Twitter and on Quora supporting “free rent” and damnation for the “rich landlords” is deafening. Enough so that I’m looking at other countries to move to in my retirement that aren’t suffering this populist group think.

    2. Allowing hedge funds and Chinese investors to buy up all the homes from bankrupt small landlords = feature, not bug

    3. you assume the left is good intentioned and not a bunch of evil scumbags.

      1. When you consider that the end goal is to destroy the US economy, all the limitless free-shit give aways and fiscal insanity makes a lot more sense.

        1. Yep. The fake economy of being close to the money printers is overtaking the real economy of voluntary transactions. If you know a bit about history, you know the road ahead is bumpy to say the least.

          1. That’s the plan. Destroy the economy and take over under the guise of “emergency powers”.

            https://bit.ly/37nM9gb

    4. Because the large corporations are easier to control. Their CEOs become the government’s butt monkeys. It’s a component of fascism.

      1. It’s also easier to make sure everyone with any power at all is on the same team. Key feature of fascism.

    5. Small business owners tend to be fiscally conservative, for obvious reasons.
      Large business executives may be more fiscally conservative then most politicians, but they are more easily controlled by social media mobs, worker collectives, anti-trust threats, or just plain old government largesse in the form of contracts.
      Looking back at the COVID lockdowns with that lens clarifies a lot of what happened.

      1. Almost like it was intentional. Not that I’m a conspiracy theorist. Probably just good intentions and good luck.

        1. >>Almost like it was intentional.

          I’ll cross lines. it totes was.

  12. In a just world he would be impeached immediately.

    Instead, leftists clap like seals because they hate the constitution anyway and they have no morality to speak of, and republicans are useless and silent.

  13. All things considered, Biden’s approach would seem to be both legally and politically ill-advised.

    I don’t think so. I think they know exactly what they’re doing here. They’ve been chipping away at the Constitution and its anti-democratic checks on government for the past 100 years or so and they think the pandemic has given them the key to that last little push they need to topple it once and for all.

    They got away with rigging the election last time thanks to the “special circumstances” of the Chinese flu and they’re planning to do it again. And the GOP is doing nothing to stop them. Sure, they’re passing these voter laws to prevent fraud, but when they get challenged shortly before the election and liberal judges decree we have to follow the same procedures we used in 2020 “for public safety”, won’t Republicans be surprised?

    Nancy Pelosi has said she’s not planning on running for Speaker next time around – do you think they’re going to elect somebody less radically democratic to replace her? No, they’re all-in on the idea that 50%+1 is a mandate for absolute rule.

    I wouldn’t bet on the proposition that the Supreme Court sees which way the wind is blowing and knows the purges and the gulags and the death camps are coming and they want to be on the right side of history when the axe comes down.

    1. Sadly, none of the above is hyperbole

    2. “ Sure, they’re passing these voter laws to prevent fraud, but when they get challenged shortly before the election and liberal judges decree we have to follow the same procedures we used in 2020 “for public safety”, won’t Republicans be surprised?”

      Extraordinary observation. Nostradamus couldn’t be any more prescient. I predict that the same Republicans will happily engage in Failure Theatre and justify it by pressuring their base to drop Trumpian candidates and call for a return to the Bushes and Romney’s to reclaim power.

  14. But Trump was the lawless one. Got it.

  15. The fact that Kavanaugh was offering both pragmatism and a compromise deserves recognition and acknowledgment.

    The fact that Kavanaugh was trying to compromise with the same people who publicly labeled a serial gang-rapist and child-abuser shows that he is a pathetic, sniveling coward who is more concerned with being a member of the elite than with defending the Constitution.

    1. +++

  16. Remember when Trump called CNN “fake news” and it was an assault on the first amendment?

    And now we get this shit.

    1. Jim Acosta has a constitutional right for the president to not make him cry.

  17. Well, the dictatorship is here, and being demanded by the members of the majority party in Congress.

    It is bad law, as the Supreme Court has already ruled, bad precedent as the President is going against the court, and bad policy. The eviction moratorium is a contributing cause to the large spike in rental prices and lack of availability of rental homes. This is a shortsighted policy to appease the economic ignoramuses in the Democrat’s progressive wing.

    1. that the supreme court was not 9-0 is scarier than everything

      The liberal justices do not care about the constitution or rights or justice or anything. They only care about their power

      Roberts is one of the worst justices of all time

    2. I do not think shortsighted is quite the right word, since it implies an intended consequence distinct from the one that actually occurs. The spike in prices, the lack of housing, the bankrupting of landlords, etc., are all precursors to full government control over private property. These “unintended consequences” are intended. The federal government understands that the more it entangles itself in this sector of our economy, the more that dependence upon its largesse will become viewed by people as an absolute necessity.

      An old anecdote about Stalin goes like this:

      When Josef Stalin was on his deathbed he called in two likely successors, to test which one of the two had a better knack for ruling the country.

      He ordered two birds to be brought in and presented one bird to each of the two candidates.

      The first one grabbed the bird, but was so afraid that the bird could free himself from his grip and fly away that he squeezed his hand very hard, and when he opened his palm, the bird was dead.

      Seeing the disapproving look on Stalin’s face and being afraid to repeat his rival’s mistake, the second candidate loosened his grip so much that the bird freed himself and flew away.

      Stalin looked at both of them scornfully. “Bring me a bird!” he ordered.

      They did.

      Stalin took the bird by its legs and slowly, one by one, he plucked all the feathers from the bird’s little body.

      Then he opened his palm. The bird was laying there naked, shivering, helpless.

      Stalin looked at him, smiled gently and said, “You see… and he is even thankful for the human warmth coming out of my palm.”

      Nothing about what we are seeing is accidental or well-intentioned. Not one bit of it.

  18. Not to mention that gov’t assistance comes with strings. That support isn’t so supportive at all when you have to sign away rights to get it.

  19. So if we kick people out, they will be homeless and therefore more at risk of corona, or something like that. Anywhere in the world, have we seen the homeless population ravaged? I know it’s summer and awesome here in the NW, but to me it seems like the camps are expanding rapidly.

  20. Obviously the Kulaks deserve it.

  21. A dictator even in his own mind. Nobody should be surprised, this is really so bizarre and such blatant theft. They’re actually trying to destroy the country.

    1. They are not trying to destroy the country. They are just trying to remake it in His(slow joe) image.

  22. From the CDC: “Badges? We ain’t got no badges! We don’t need no badges!
    I don’t have to show you any stinking badges!”

  23. Meanwhile, county courts in Ohio are deferring to the controlling circuit court’s opinion that the eviction moratorium is null and void and are letting eviction proceedings go forward. This thinking needs to spread across the country.

    1. The county courts have weighed in but what about a court for The Ohio State?

    2. The CDC’s moratorium is enforced by regulatory arms of the federal government. How do county or circuit court decisions protect you from millions of dollars in fines imposed by federal bureaucrats?

  24. When you have the guns, you don’t need to worry about Supreme Court rulings.

  25. This is like Qualified Immunity – if there’s no specific ruling that this exact thing is unconstitutional, who’s to say whether or not it’s unconstitutional? Can Joe Biden arrest all the Republicans in Congress and have them executed? Can Joe Biden declare himself President For Life? Can Joe Biden start writing whatever laws he pleases? Show me where the Supreme Court has ever said he can’t. While you’re at it, show me where the Supreme Court has ever ruled that Joe Biden can’t simply dissolve the Supreme Court.

  26. But at least there are no mean tweets, so Sullum has no problem with it.

  27. What baffling is how 1/2 the Supreme Court can even claim this authority was granted in the U.S. Constitution — as well as Obamacare.

    *EVERYONE* knows it’s UN-Constitutional. A 5-year old could read the Constitution and call B.S. yet 1/2 the “experts” *pretend*.

    1. *EVERYONE* knows it’s UN-Constitutional. A 5-year old could read the Constitution and call B.S. yet 1/2 the “experts” *pretend*.

      Progressives believe that the Constitution needs to be reinterpreted in light of current beliefs and circumstances. They also believe that the Constitution makes some fundamental (in part implicit) guarantees of fairness, well-being, and equality that override all other concerns.

      So, they construe this as a conflict between different parts of the Constitution, and they think that in those conflicts, the protection of private property is secondary to more important concerns.

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  29. like all things the Democrats are doing lately: it’s easier to ask forgiveness than to ask permission.

    Biden knows that by the time this makes it to the Supreme Court the eviction will expire and they’ll start again.

  30. Kavanaugh should have rules them and there. The law isn’t about letting things happen because they are close to expiring or whatever. You are a Supreme Court Justice. The buck stops with you. Don’t make a down home type of decision. Precedent is what happens at your level. What a noob.

    1. “Ruled then and there” not “rules them and there”. Now I’m the noob. Not proofreading and shit.

    2. This is correct, and a nuance that the vast majority of idiots don’t appreciate. Kavanaugh’s concurring opinion is just glorified dicta. Sure, 4+1 = 5. But as of now, he has only joined the Majority to deny vacating a stay and his opinion is just dicta. Kavanaugh could have squashed this by joining with the conservative justices and penning a concurring (or even Majority, potentially) opinion on the orderly distribution of assistance funds. Major blunder by Kavanaugh to assume his dicta would carry the day…

  31. All things considered, Biden’s approach would seem to be both legally and politically ill-advised.

    I don’t see why it is “politically ill advised”. Progressives have no problem with politicians ignoring the Constitution when it furthers progressive policy objectives.

    1. Then using a likely smackdown to justify court packing.

  32. ‘the Bulk of the Constitutional Scholarship’ that would be “unconstitutional” for those people that are not partisan sycophants.

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