Executive Power

Biden's Eviction Moratorium Defies the Rule of Law

The administration issued the order even while conceding that it lacked the authority to do so.


The day before the Centers for Disease Control and Prevention (CDC) imposed a new eviction moratorium last week, the Biden administration conceded that the agency had no legal authority to do so. The fact that Joe Biden was unfazed by that crucial point does not bode well for a president who was supposed to restore respect for the rule of law.

"To date," White House Press Secretary Jen Psaki said in an August 2 press release, "CDC Director Rochelle Walensky and her team have been unable to find legal authority for a new, targeted eviction moratorium." Senior presidential adviser Gene Sperling used nearly identical language at a press briefing the same day, saying the CDC had concluded it lacked legal authority "even for a more targeted eviction moratorium that would focus just on counties with higher rates of COVID spread."

Walensky nevertheless issued such an order, covering about 90 percent of the country, the following evening, calling it "the right thing to do to keep people in their homes and out of congregate settings where COVID-19 spreads." The idea that government officials can ignore the law as long as they are doing "the right thing," long favored by authoritarians and demagogues, is anathema in a constitutional republic.

The CDC's justification for its eviction moratorium, which it first issued last September, was troubling from the beginning, relying on an alarmingly broad reading of the Public Health Service Act. According to the CDC, Congress gave it limitless power to order Americans around, as long as the avowed goal is preventing the spread of a communicable disease.

While a few federal courts sided with the CDC, two-thirds of the decisions said the agency did not have the authority it claimed. When one of those cases made its way to the Supreme Court in June, it was clear at least five justices agreed with that conclusion.

The Court declined to lift a stay on a federal judge's ruling against the CDC. But Justice Brett Kavanaugh, who provided the crucial fifth vote, said he agreed that the agency "exceeded its existing statutory authority by issuing a nationwide eviction moratorium."

Because the moratorium was scheduled to expire at the end of July, Kavanaugh was willing to let it slide. But he warned that "clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31."

The Biden administration clearly understood the import of Kavanaugh's concurrence. "The Supreme Court declared on June 29th that the CDC could not grant such an extension without 'clear and specific congressional authorization,'" Psaki said on August 2. Sperling echoed that point.

Biden himself conceded that "the bulk of the constitutional scholarship" says the moratorium is "not likely to pass constitutional muster." But he hoped that the ensuing litigation would drag on long enough to allow distribution of congressionally approved rental assistance before the eviction moratorium was overturned.

While it is tempting to blame the CDC, which was responsible for the initial power grab and its subsequent extensions, the decision to defy the Supreme Court was Biden's. The New York Times reports that Biden caved to pressure from his party's left wing, overriding the advice of the CDC and "his own lawyers."

Those advisers, according to the Times, "saw an extension as a dangerous step that could limit executive authority during health crises." In other words, they wanted to avoid a Supreme Court decision definitively rejecting the sweeping powers the administration had asserted, because Biden might want to use them in the future.

While it was easy to lose sight of the fact amid progressive criticism of Donald Trump's lawlessness, such reasoning is par for the course with modern presidents, who typically have sought to maximize their own power, regardless of what statutes or the Constitution say. As Biden's casual disregard for the law shows once again, an independent judiciary is a crucial check on that impulse.

© Copyright 2021 by Creators Syndicate Inc.

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  1. Tyrant’s gonna tyrant.

    1. And all tyrants think they’re good, and doing the right thing.

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      2. Der BidenFuhrer’s motives are good, so all must obey! Rule of established laws, rather than rule of men??!?! Come ON now! This is an EMERGENCY!

        (/Sarc, in case it’s not obvious. It is ALWAYS an emergency, whenever we need one to grow our POWAH!).

      3. At least for themselves and/or their Holy Cause.

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  2. So here you have a President that admits he’s knowingly violating the Constitution. And the R’s won’t file for impeachment when they retake the house.

    1. c’mon, man. Nobody’s even pretending impeachment is about anything other than partisan grandstanding anymore. Constitution, and Rule of Law, and such are just words you say so you can sound righteous before the more fanatical members of your base.

      1. Why even bother? Congress doesn’t have the votes to do any such thing. Not one single person is going to defect from Team Blue and oppose Biden because the machine will eat them if they do and most of their bases would really rather they go harder into the crazy left.

    2. The Republicans do not have control of the House. House Democrats were calling on Biden to take this unconstitutional action. Impeachment is a nonstarter until at least the next Congress, however much Biden has violated his oath of office.

      1. He did say “when they retake the house”

        1. Reeding is hard.

    3. Yeah, they’ll puss out again. Why can’t these people grow some fucking spines?

      1. Spines are incompatible with shameless ethics.

        1. And slithering reptiles.

      2. Because their role is the jobber – designated loser – to provide the illusion of opposition within government to the totalitarian left.

        1. The perpetually elected Rino’s (Murkowski, Collins, Romney, etc) are also there to provide critical support to the Democrats when necessary, like when impeaching Trump twice or making a trillion dollar infrastructure bill happen.

          Spines have nothing to do with it. There a crucial element of establishing uni-party control.

  3. “The fact that Joe Biden was unfazed by that crucial point does not bode well for a president who was supposed to restore respect for the rule of law.”

    Was there actually anyone delusional enough to think that?

    1. They were told the narrative that Biden represented the normal political order was false. The tone of this article shows that narrative is hard to go against in a media outlet.

    2. Yes. And most of the Reason staff were among them.

    3. Sullum. Why else has he been pimping every last DNC talking point for the last year.

  4. You almost made it through the entire column without mentioning 45. You know, the guy who insisted that COVID must primarily be fought at the state level?

    1. The guy who cut off travel from China and spearheaded the fastest vaccine development in history?

      1. The same guy ruined the economy and killed hundreds of thousands of Americans. He privately held the opinion that Covid was dangerous but then lied in public because he incorrectly believed lying to the American people would help him win another election. Fuck him and fuck you.

        1. Fuck off Sullum.

        2. Retard.

        3. Did you catch a direct flight from Stupidville, or did you have to change planes in Chicago?

        4. You’re such a fucking faggot, fuck trump but acting like he killed people is beyond retarded.

        5. Where are you coming from? He never once mentioned Fauci!

  5. 81 million anyones.

  6. Biden’s Eviction Moratorium Defies the Rule of Law
    The administration issued the order even while conceding that it lacked the authority to do so.

    Sullum believes the Libertarian Moment is just around the corner!

    No mean tweets anymore!

    1. I suppose everyone living rent-free on the expanded government dole while demanding more stuff and social control from the Feds could suddenly decide to embrace free markets, personal responsibility, and liberty. But probably not.

  7. Biden is simply anticipating packing the Supreme Court, doing away with the filibuster, nationalizing unrestricted voting, and other methods of ensuring Democratic rule for the foreseeable future that will make such actions retroactively legal and Constitutional. So what if he jumped the gun a little and asserted he has powers he doesn’t yet possess? He soon will possess them, so it’s no big deal.

  8. Lawrence Tribe is the lawyer given Biden the legal fig leaf for this action, which shows that it was a great thing that he was never nominated for the Supreme Court.

  9. Like it or not the Supreme Court and the 4th wave of Covid in the red states gave Biden the space to do this. One of the Trump appointed judges who originally struck down the moratorium even said as much basically saving she isn’t sure how the Supreme Court would rule on the question because they haven’t yet done so. And in closing, fuck Glenn Greenwald. That dude is dishonest and sold out to fascism.

    1. Ah, yes. Pushing back on progressive authoritarianism signifies fascism. Alinsky would be proud.

    2. fuck off you authoritarian bootlicking faggot

    3. Keep whining. It suits you

  10. Another great Sullum article. It is a shame they left off the last paragraph; you know, the one where he calls for everyone to take to the streets in mostly peaceful protests.

  11. Citing The Nation, which can’t even mention Justice Kavanaugh without adding the caveat “alleged rapist”, doesn’t do much for your credibility.

    1. It’s Sullum so even that is a step up in credibility.

  12. Unconstitutional, but unconstitutional within acceptable parameters, amiright Sullum?

    1. And mostly peaceful.

    2. Qualified immunity?

  13. Zombie Maverick is gonna save us!!

    Love those sunglasses jerkoff!

  14. c’mon man!
    They see me Stating
    They hatin

  15. This is the governance you demanded and have spent the last year whoring your reputation for Sullum. If you had a brain and any level of honesty or integrity you would have known this and the rest of the rest of the disasters of this administration were nearly inevitable but there you were hustling for the lawless brigades.

  16. Fascists defying the law?
    Say it ain’t so, Joe!

  17. Duh. Of course it unconstitutional, and it will be struck down by the courts within a short period of time. This was just political theater to mollify the mindless millennial progressive wing

    1. I admire your optimism, but I doubt it will be within a short period of time, and maybe not at all.

  18. Who cares? Brandyshit’s happy; no mean tweets!

    1. That’s what really matters.

  19. Progressives like AOC enthusiastically support defying the rule-of-law in this case because they believe (or want us to believe) that because their intentions are so noble – the poor people cannot be thrown out on the street – that it’s all okay. Put another way -they want us to believe that the law is wrong – so it’s okay to ignore the law when it helps people. Sadly, a lot of voters – apart from landlords – don’t care much about Biden’s eviction moratorium. The Democrats will win this one within the context of PR.

  20. Sounds like Republicans need to vote to extend the moratorium. Or they can stand up and proudly support the idea that a free market means global pandemics make people homeless, and we should let that invisible hand work, and that’s the best of all possible worlds.

    Instead they are governing from the perspective that the more Americans suffer under Biden, the better they think they’ll be off politically.

    I don’t know about you, but I know bad people when I see them.

    1. People choosing not to pay the money for the rental agreement they signed would make them homeless. This isn’t capricious “get the fuck out.” This is people making the conscious decision to break a contract they agreed to, which gives the other party the option of finding someone that will pay the rent.

    2. Global pandemics don’t make people homeless.

      Government lockdowns do.

      This ‘moratorium’ is a solution to a problem caused by government.

      In any case Tony, why aren’t you helping other people pay their rent?

    3. I don’t know about you, but I know bad people when I see them.

      Oh, me too. You look like a little brownshirt to me, or perhaps one of those Stasi officers.

  21. If only Joe hadn’t been playing ‘I Got The Power! (https://www.youtube.com/watch?v=ksR1IGYeJOg) in the background when he made the announcement…

  22. After Obama’s defiance of immigration law is anyone surprised at this move? Government fails to control the pandemic or provide relief so naturally private landlords must pay

  23. But at least he didn’t sent out any nasty tweets . . .

  24. “who was supposed to restore respect for the rule of law”???? WTF!
    That’s gotta be sarcasm right? Oh nope; the list that Trump *supposedly* did the same…

    – Ban Muslims from the country
    – Deport people who were brought to this country as babies
    – Reverse international human rights standards for people seeking asylum
    – Declare a fake national emergency and steal money from the military to build a wall
    – Kidnap children and continue to kidnap children after the courts ordered him to stop
    – Enrich his family and his businesses
    – Hawk products directly from the White House
    – Bribe a foreign government to gather dirt on his political rival
    – Claim “absolute immunity” for all executive actions and refuse to allow his administration to comply with congressional oversight
    – Obstruct investigations in two separate impeachment inquires
    – Fire the director of the FBI investigating him
    – Dissuade ethnic minorities from filling out the Census
    – Promise and deliver pardons to his cronies who lied to the government to protect him
    – Launch a failed coup

    And which one of those is not, either a blatant fabricated LIE or UN-Constitutional?

    I mean good grief the #1 reason the USA’S National Government was even created was to prevent foreign INVASION… The other half of the list was so based in partisan WITCH-HUNTING not a single justice system would listen to the lefty mob with pitch-forks.

    It’s exactly as-if these lefty-imbeciles live in some delusional Nazi-Land they think really exists instead of the USA of which they are in.

  25. Of course. That’s why the 9 dudes in dresses declared it unconstitutional and Chiney Joe said ‘Constitution? I can’t even spell that’.

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