The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, I gave President Biden some credit: he was willing to direct his administration to adopt a popular policy the courts would probably stop. After all, there was no binding injunction, so nothing stopped Biden from doing so. He took a page out of Orval Faubus's playbook.
My praise was premature. Shortly before the CDC announced the measure, President Biden shirked personal responsibility for the order, which he acknowledged was probably unlawful. Here is the readout of the President's remarks:
Q Mr. President, we're learning that your administration is about to announce a new partial eviction moratorium, COVID related. Can you tell us any more about that? And are you sure it's going to pass Supreme Court muster?
THE PRESIDENT: The answer is twofold. One, I've sought out constitutional scholars to determine what is the best possibility that would come from executive action, or the CDC's judgment, what could they do that was most likely to pass muster, constitutionally.
The bulk of the constitutional scholarship says that it's not likely to pass constitutional muster. Number one. But there are several key scholars who think that it may and it's worth the effort. But the present — you could not — the Court has already ruled on the present eviction moratorium.
So I think what you're going to see, and I — look, I want to make it clear: I told you I would not tell the Justice Department or the medical experts, the scientists what they should say or do. So I don't want to get ahead.
The CDC has to make the — I asked the CDC to go back and consider other options that may be available to them. You're going to hear from them what those other options are.
I have been informed they're about to make a judgment as to potential other options. Whether that option will pass constitutional measure with this administration, I can't tell you. I don't know. There are a few scholars who say it will and others who say it's not likely to.
But, at a minimum, 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. That's why it was passed in — in the act that we passed in the beginning of my administration, and it went to the states. . . .
But in the meantime, I've asked, isn't there any safety valve we can put in? And it's the one I explained to you. Again, CDC will announce that and the details of exactly how it works. I'm not telling — I told them I want them to take a look. I didn't tell them what they had to do.
And my hope is, it's going to be a new moratorium that in some way — and I'm not going to announce it now; I'll let them announce it — in some way covers close to 90 percent of the American people who are renters. And so that's all I can tell you now.
Thank you very much.
Q Why not 100 percent? What's the difference?
THE PRESIDENT: Because it's a — (laughs) — let them explain that to you. Okay? I don't want to get too far ahead.
Remarkable. The "CDC" will make the judgment. Not the President. The CDC. Indeed, Biden wouldn't even vouch for the legality of the measure. The most he would say is that "several key scholars who think that it may" pass constitutional muster. Who are those scholars? Professors Dawn Johnsen and Marty Lederman at OLC?
In a few words, Biden shined a bright light on how his executive branch functions. The buck does not stop with him. And he won't even take accountability when his CDC takes a popular, but legally dubious executive action. He would not tell DOJ or CDC what to say. They work for him! We aren't talking about some prosecutorial issue that requires independence. This question concerns the duty of faithful execution. He has a constitutional obligation to make sure his subordinates comply with the law. But Biden simply stood on the sidelines.
We are miles away from what then-Professor Kagan called "presidential administration." Rather, we are closer to what I called presidential maladministration. In the past, I wrote that courts should be extra skeptical when a new administration reverses the position of a prior administration, and discovers a new source of statutory authority. Here, the Biden Administration reversed itself! On Saturday, the executive branch switched sides, released a 19-page opinion (that was no doubt vetted by OLC), and found that authority! And the President acknowledges it will likely get stopped in court, but said the litigation will buy some time to distribute funds. And he's daring the Supreme Court to leave the policy in place long enough so all of the funds can be distributed. This is a direct barb at Justice Kavanaugh.
Litigants should quote President Biden in every pleading, like they did with President Trump. Not even the chief executive thinks this measure is lawful.