The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier today, I wrote about the Laurence Tribe's role in flipping the Biden Administration on the eviction moratorium. The Washington Post published a deep dive into the flip. It turns out that Nancy Pelosi recommended that President Biden seek advice from Tribe. Ron Klain, White House Chief of Staff, called Tribe on Sunday. And somehow Tribe changed everyone's mind.
Let's walk through the chronology.
First, on Thursday, July 29, the White House announced it could not extend the moratorium:
Last Thursday, two days before the moratorium expired, White House press secretary Jen Psaki called on Congress to pass a law authorizing the moratorium — an impossibility for the divided legislature on such short notice.
Earlier, Biden wanted to extend the policy, but the White House counsel said no.
Before the reversal, Biden had been open to extending the ban but accepted the advice of the White House counsel that he had no legal means to do so, the person said. . . .
Senior White House officials Gene Sperling, Brian Deese and Susan Rice had the week before raised internally whether the moratorium could be extended, only to be rebuffed by the White House counsel.
Second, after the announcement, Speaker Pelosi told Biden to seek Tribe's opinion. According to PunchBowl, "Pelosi provided Biden with several names." We don't know who these other scholars are. But Tribe was apparently at the top of the list.
After the administration announced last week that it could not find a legal justification for extending the ban, House Speaker Nancy Pelosi (D-Calif.) recommended to the White House that Biden seek out Tribe's counsel, according to one person familiar with the matter. PunchBowl News first reported that Pelosi told the White House to seek the advice of Tribe and other lawyers.
Third, Biden told his Chief of Staff, Ron Klain to call Tribe. That call took place Sunday evening:
After White House legal advisers found he could not extend a national eviction moratorium, President Biden told Chief of Staff Ron Klain to seek the advice of Harvard law professor emeritus Laurence Tribe about whether an alternative legal basis could be devised for protecting struggling renters across the country, according to a person familiar with the matter….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 original ban in potential defiance of a warning from Supreme Court Justice Brett M. Kavanaugh, the person said.
Tribe already explained his argument to Politico this morning:
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.
Adam Winkler repeated this argument in the New York Times. Color me crazy, but I don't think reducing 100% coverage to 90% coverage will change anyone's mind. This dilatory tactic will simply give the government more time to distribute money before some district court enjoins the policy.
Yet, fourth, this position somehow persuaded White House Counsel, Dana Remus.
But Remus got behind the new strategy after consulting with Tribe and proved instrumental in the effort, working late Monday night to push the measure through, 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 declined to acknowledge whether this conversation took place
In an interview, Tribe said he was not at liberty to confirm "any conversation I may or may not have had with the White House or [Biden's] staff" but added that he had spoken to Pelosi about the matter Tuesday afternoon. . . . 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."
Fifth, as late as Monday, White House official Gene Sperling said there still was no path forward:
On Monday afternoon, when Sperling told reporters the administration saw no legal path forward, the health-care agencies had not yet agreed to back the new moratorium, the person said. . . .
On Monday, Sperling told reporters there was no possible legal avenue for either extending the existing moratorium or enacting a new, more targeted eviction ban. "The president has not only kicked the tires, he has double-, triple-, quadruple-checked. He has asked the CDC to look at whether you could even do targeted eviction moratorium that just went to the counties that have higher rates, and they as well have been unable to find the legal authority for even new targeted eviction moratoriums," Sperling said.
Sperling added at that news conference: "I don't think this means this president is going to give up. I think he's going to keep looking and pushing. . . . We are still investigating what that legal authority is, whether there is any options that we can have on eviction moratoriums beyond what we've seen."
Sixth, by Tuesday, the administration adopted the new policy.
By Tuesday, government lawyers in the White House, Department of Health and Human Services, and Centers for Disease Control and Prevention produced a 19-page document to protect the overwhelming majority of renters from eviction until Oct. 3. It was released that afternoon in a remarkable reversal by the White House, which a day earlier had said it did not think it had the authority to extend the ban.
I find it unlikely that the 19-page document was written from scratch overnight. Government doesn't move that quickly. I suspect this policy was written in advance, but the White House counsel rejected it. However, once Tribe gave that recommendation his blessing, CDC dusted off the document and put it forward.
This move may have short-term benefits for Biden. He can take credit for halting evictions. And, if the Supreme Court rule against him, liberals can attack the Roberts Court. But this move was very risky from a long-term perspective. If the Court rules against the President, a majority will have to narrow the scope of 42 U.S.C. § 264. And that narrowing construction will constraint this administration and others in health crises unimaginable. Plus a declaration by the Supreme Court that the policy is unlawful paves the way for a massive takings suit. What a risky gambit.