Who Are The "Several Key Scholars" Who Support The New Eviction Moratorium? Apparently Laurence Tribe is one of them.

"I think the odds are greater this time around" the measure will prevail.

|

Shortly before the CDC issued the expanded eviction moratorium, President Biden shirked all responsibility for the action. He meekly cited the opinions of "several key scholars" who apparently supported the action, but wasn't so sure.

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.

Who are those scholars? Apparently Laurence Tribe is one of them. He bragged about his work to Politico:

While even Biden suggested the new incarnation of the eviction ban won't survive the high court's scrutiny, at least one prominent legal scholar has been in close touch with the White House in recent days contends the latest policy has a fighting chance of surviving a constitutional challenge.

"I think the odds are greater this time around," Harvard Law Professor Laurence Tribe said in an interview.

Why does Tribe think this new policy will pass constitutional muster? He cited two factors.

Tribe pointed to two changes that could affect the Supreme Court's take: one in the new policy and another in the state of the pandemic.

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.

The new policy covers 90% of the country, including all major urban areas. I suspect this 90% geographic area covers far more than 90% of the evictions nationwide. And as transmission rates increase, the covered areas will approach 100%. Still Tribe thinks a  slightly-more-narrow policy might assuage Justice Kavanaugh.

Tribe said he thinks those modifications might be enough to persuade the justices. "In a very large country, that leaves out a substantial part," he said.

I think Tribe badly misreads Kavanaugh--or he has a really low estimation of the Justice's resolve. I would look to another Harvard Law Professor for guidance. Noah Feldman explains that Biden's gambit will backfire.

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. . . . Any president is always in an ongoing dialogue with the Supreme Court. Both branches of government are also talking to Congress. In this instance, the relevant beat of the dialogue was Kavanaugh saying to the Biden administration that he didn't want to put people out on the street, but that in order to respect the Constitution, the Biden administration must go to Congress to extend the ban. Instead of acknowledging and respecting this point, Biden essentially told Kavanaugh that he was going to ignore him. . . .  Ignoring the swing justice when he is being reasonable and compromising is a terrible idea for a president.

I agree entirely with Feldman. Biden's cave to progressives will harm him in the long term with a Justice who is likely to moderate on contentious legal issues. The Wall Street Journal identifies the lesson that Justice Kavanaugh should draw here:

As the Justices navigate a polarized political climate, one temptation is to avoid direct confrontations with the elected branches. But polarization is increasing the willingness of political officials of both parties to exceed the limits of their power. The Justices can't let legal caution become a license to lawlessness.

I also agree entirely. I hope that Justice Kavanaugh recognizes that a "cooperative" approach to the separation of powers does not work.

Still, the Biden Administration can win by losing–slowly. In June, the Court sat on the petition for several weeks without taking action, hoping the controversy would go away. And the Biden administration is counting on dilatory tactics. The President admitted any delay would allow the states to distribute more money. Tribe said the Court intervening before the money is distributed would be "quite irresponsible."

"To make that impossible because of something of a legal cloud over what the administration opted to do would be quite irresponsible," added Tribe, who acknowledged his conversations with the White House but said he wasn't sure whether he'd have any ongoing involvement in crafting a defense of the policy.

For the administration's stake, it should pass on Tribe's legal services. He is not a DOJ employee, and should have no role in this defense. Tribe really should have kept his mouth shut with the press. But he couldn't help it. All of the landlord litigants should immediately submit FOIA requests for any communications the White House or DOJ had with Tribe. If the White House is outsourcing its constitutional discourse to members of the public–indeed a member of the White House Supreme Court commission!–the public should know what that advice was.

Speaking of which, we still do not have an SG nominee. Josh Gerstein writes at Politico:

For now, it appears that role will fall primarily to the administration's top lawyer at the Supreme Court: Acting Solicitor General Elizabeth Prelogar.

Veterans of that office have long expected Prelogar to be nominated to the job on a permanent basis, but six months after Biden's swearing-in, no nominee for the prestigious post has been announced. That makes it the highest-ranking vacancy in Justice Department leadership that remains without a nominee.

At what point does the long-dormant Vacancy Reform Act Twitter get going?

NEXT: Federal Judge Imposes Sanctions on Lawyers Who Filed Frivolous Election Suit

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “he has a really low estimation of the Justice’s resolve”

    I doubt it. Kavanaugh has zero spine, so Tribe is probably right. He got played. When people get played they don’t think to themselves “Gee I got played, I was dumb, I should not believe another word they tell me.” Instead, they double down. See also: Roberts who kept allowing California to move the goal posts to evade a Supreme Court review.

    1. Tribe’s scholarly research and conclusions always support the Democrat platform. That is statistically significant.

      1. It may simply mean that the Democrats have better arguments.

        1. That would explain the half-century-plus trajectory of the American culture war.

        2. I can sort of understand being a blockheaded partisan about other issues but come on really? You really believe its okay for the government to snap its fingers and essentially confiscate private property nationwide indefinitely without compensation? You know not all landlords are Mr. Moneybags smoking hundred dollar wads in their mansions right? Many are of modest means with bills. Who’s going to pay them you? What if you were an owner and this moratorium hit you and devastated your bank account? Would you still be gloating about it?

          I would think some things cross party lines but I guess not.

          1. I was making a general comment, not a comment about this specific issue. As I said on another thread, I do not support the eviction moratorium.

            But, that I believe the Democrats are wrong on this specific issue doesn’t mean I can’t also believe that in general, Democrats have better arguments. Nobody gets it right all the time.

            1. Ignoring the law “to help the disadvantaged” is Democrats’ general approach. Another glaring example of this is Affirmative Action (we’ll set out anti-discrimination principles / laws aside “for a good cause!”).

              1. meant to write:
                we’ll set our anti-discrimination…

              2. It’s more abstract than that. They phrase everything as “helping” someone or “protecting” someone, without stating that this “help” or “protection” necessarily hurts or imposes costs on someone else.

                1. Most of the time, their “help” and “protection” even harms those they claim to be helping. Raising the minimum wage puts the least-skilled workers out of jobs. Affirmative action gets blacks into more difficult colleges than their test scores and academic record indicate they can handle; many end up with college debt but no degree, when they could have done well in an easier program.

    2. “Kavanaugh has zero spine, so Tribe is probably right. ”

      Let’s not forget Roberts was in the “liberal” four.

    3. JB : “he has a really low estimation of the Justice’s resolve”

      dwb : I doubt it.

      A low estimation is not necessarily an erroneous estimation. Many have a low estimation of my talent for entrechat, and many would be right.

  2. “Still, the Biden Administration can win by losing–slowly.”

    It wins either way. If Biden ended the moratorium, he would be responsible for the people being evicted. If the courts end it, he gets to blame the courts.

    1. Right as the Supreme Court grants cert, the Biden admin will withdraw the order and say we wont do it again. That will moot the case. And, Kavanaugh will allow them to do it again.

      Then the CDC can come back in Oct with a different order….

      1. I’d think we might be in “capable of repetition yet evading review” territory.

        1. We obviously were to begin with, Kavanaugh, charitably, just didn’t think they WOULD repeat it.

  3. “I hope that Justice Kavanaugh recognizes that a “cooperative” approach to the separation of powers does not work.”

    And I hope America’s elected officials enlarge the Supreme Court, creating a Court far more representative of modern, educated, reasoning, mainstream, liberal-libertarian, majority America.

    Let’s see whose vision prevails — make that, continues to prevail –in America.

    (This part — “Tribe really should have kept his mouth shut” — demonstrates a remarkable lack of self-awareness.)

    1. Never gonna happen Artie, the court stays at 9. But it will be 7-2 in a few years after the GOP takes over, and all your dreams torn asunder.

      1. Just not enough uneducated racists, fairy-tale-believing gay bashers, backwater misogynists, etc. left in modern, improving America to enable the Republicans to take over anything (outside of the likes of Wyoming, Mississippi, and Alabama).

    2. “And I hope America’s elected officials enlarge the Supreme Court, creating a Court far more representative of modern, educated, reasoning, mainstream, liberal-libertarian, majority America.”

      Unlike the uneducated goobers who own investment property?

    3. So in your mind modern, reasoning, educated America believes in eviscerating property rights? That’s a majority position? You actually believe that?

      As usual you’re a fascist bigot who is completely full of shit.

      1. I was responding to the silly work-the-refs commentary — advancing the customary agenda of backwardness, bigotry, superstition, and ignorance — more than to the details of any rule announced by the Supreme Court.

        If, indeed, there is any such rule yet in this context.

      2. It’s circular reasoning: He defines being modern, reasoning, and educated in terms of whether you agree with him. So, of course, every modern, reasoning, and educated American agrees with him.

    4. Liberal-libertarian? Libertarians have very little sway in modern American politics.

  4. If I were an attorney, it would scare the daylights out of me to have a President admit he is intentionally disregarding the Supreme Court. That’s an attack on the entire institution of law.

    If the Courts can be simply ignored, then why bother following the law? And if the law is irrelevant, then so are its practitioners and attendants.

    I’m trying to imagine an analog for my line of business, but I’m coming up empty. There is no scenario where intentionally not following agreed-upon standards is a good thing — except in crime, I suppose.

    1. The Supreme Court has not handed down a decision on this issue. There was no briefing and no argument. One justice issued a statement, not the Court. This is not “disregarding the Supreme Court” because the Court has not yet actually spoken on the issues.

      1. Four justices issued an opinion that the CDC moratorium was illegal, a fifth an opinion that agreed but said since it was expiring in a month, no injunction was appropriate.

        Its not just a “statement”.

        1. No Bob. Four justices voted to grant the application vacating the lower court’s stay of the decision below concluding that the moratorium is unlawful. They did not issue an opinion. Kavanaugh wrote a concurrence in denial. This procedure is relevant as to what the lower courts might do when now faced with new applications, but it is not a binding decision on the lower courts.

      2. It would be fun to see some plaintiff naming everyone involved personally, quoting both SCOTUS and POTUS as evidence there was a clearly established right.

        We can then have a qualified immunity showdown… which might make for some interesting bedfellows. Maybe a BLM and Cato teamup??

    2. “That’s an attack on the entire institution of law.”

      Want to see my shocked face? I no longer have one.
      I read the democratic party platform.

    3. Does it “scare the daylights” out of you when Republican states pass abortion laws that are plainly in violation of the Roe/Casey framework? Policymakers are free to make the policies they want, and if the courts want to strike them down, so be it. Just because a right wing court will likely enjoin the policy is no reason not to try. And this situational hand-wringing about norms and respect for the judiciary is beyond laughable, particularly coming from the Trumpist right.

      1. Teefah seems to be a big believer in two wrongs making a right. To defend the wrongs of his team, of course.

        But if the executive can ignore the other branches at will with no consequence then what do we actually have left? When Trump ignored the legislature to appropriate money for the wall I’m sure you were fine with that. Wait, you weren’t? Fucking hypocrite.

        1. “When Trump ignored the legislature to appropriate money for the wall”

          I was under the impression that the legislature had enacted the National Emergencies Act, and could (And should!) repeal it any time they wanted. There’s a difference between using an actual law to some effect the legislature would prefer you not, (But doesn’t bother to legislate against.) and usurping power no legislation gives you.

          1. The CDC is citing their enabling act for their authority. That is an actual law.

            And yes, they are both abuse of procedure, IMO.

    4. If the lwas don’t matter for Democrats, I don’t see why they should for Republicans either. I’d love to see some conservatives start employing guerilla terrorism against leftist targets, for example.

      1. Do you mean like the Congressional baseball shooting?

    5. DaveM — a lot of people said that Obama ought to have been impeached for DACA after having publicly stated that he knew that was illegal. And remember that the impeachment charges against Nixon included a lot more than just Watergate.

      Speaker Pelosi is why Biden & Harris aren’t going to be impeached — now — but 17 months from now when she’s no longer Speaker…..

      1. The two of them might be impeached 17 months from now, but things would have to get a lot worse than right now for them to be convicted.

      2. Obama’s DACA EO was much scoped down compared to his proposed legislation.

  5. LOL First “scholar” I thought of when I read Biden’s comment.

    1. Lawrence Tribe is 79 years old — at what point can we say that “he’s past his prime”???

  6. The CDC moratorium is bad policy, and also an abuse of procedure. You’d think that’d be enough. But Blackman has always been a conservative narrative hipster.
    And thus Blackman has once again reasoned his way into a factual narrative that just happens to be aligned exactly with what you’d think he would want to think in real time.

    Knowing when to delegate to experts and when not to is the mark of a good leader.
    You do so if you’re quite sure you’re going to follow what they say anyway. Then you’re not wasting their and your time with a needless approval rout.

    Deciding to never delegate to experts is what people who have not thought hard about leadership…or are grasping for something to get angry about.

    1. Biden under political pressure directed the “experts” to make the decision, then pretended to “delegate”.

      Rube bait. Looks like it caught one.

      1. I would never argue with Bob from Ohio with respect to what constitutes “rube bait.”

      2. Bob, strategic workflow is part of what I do in my job, so your ipse dixit-cum-insult doesn’t really work.

        1. “strategic workflow”

          We speak English here.

          1. Pretty sure you know what strategic means.
            Pretty sure you know what workflow means.

            Pretty sure you can put two words together, even if you haven’t seem them used together before.

            1. Oh, I know what the two words mean.

              Its the combination which is mere gibberish.

        2. I’m sorry…strategic workflow? Is that a new term for critical path?

          1. It’s like SOP for how to handle various types of incoming tasks, including who gets to sign off.

            We use RACI charts a lot.

            1. Ok. RACI I am familiar with.

    2. “Knowing when to delegate to experts and when not to is the mark of a good leader.
      You do so if you’re quite sure you’re going to follow what they say anyway. Then you’re not wasting their and your time with a needless approval rout.”

      Not sure what you mean. At least in the quote above, Biden acknowledges he’s going against the weight of expert advice, but justifies his decision by saying that there are some scholars who agree with him. He’s not delegating.

      1. That’s now how Blackman seems to characterize it – he’s arguing Biden is supine before the experts.

        What you are describing is taking a stand, for better or worse. (And IMO the stand is for the worse). But for whatever reason Biden’s actual position is not the main objection Blackman is pushing.

        1. As Blackman correctly pointed out, Biden’s talking out of both sides of his mouth. Biden made the decision to extend the moratorium, against the weigh of expert advice, but he’s acting like he didn’t:

          “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.”

  7. “Knowing when to delegate to experts and when not to is the mark of a good leader.”
    I’d qualify that based on what teach in my strategic management course.
    Delegation is appropriate when the “expert” has a recognized position of authority with the appropriate competence. Otherwise it is a dereliction of duty on the part of the leader

    1. I think you’re mixing up accountability and responsibility here.

      The delegator is still accountable. But taking on a responsibility when it will always be a rubber stamp is dumb.

      1. I definitely am not mixing them up.
        1) If there is a f*ck-up, it’s the boss’s fault. There a good motto for your tee-shirt.
        2) Just because it is ultimately the boss’s fault does not mean that the subordinate does not also get penalized.

        My comment is that delegating to an incompetent or to someone not in the chain of command is a dereliction of duty. If you as a leader want that person to have the responsibility, then appoint that person to the appropriate level in the line management.

        1. Yeah, if you delegate to a bad expert, that’s on you. Heck, if you delegate to a good expert and they screw up, that’s on you.

          Which is IMO what happened in this case – you will see above I think Biden’s decision is wrong both on substance and procedure – and *I call it Biden’s decision*.

          Calling it maladministration for Biden to acknowledge the practical reality of how work flows is, as I said, Blackman straining to find some objection that’s new to hang his hat on.

          1. This wasn’t just delegating to a bad expert, it was looking through many experts for one that gave the advice Biden (or his handlers) wanted. He made the decision _before_ consulting the experts. It’s _his_ decision, not the expert’s.

    2. He had the experts on constitutionality brief him. They said it was unconstitutional. So he went looking for an expert who didn’t say it was constitutional, just that it was worth attempting to get away with it.

  8. “Deciding to never delegate”
    is what gets an executive tangled in the weeds.

  9. A perspective from the Navy: “The responsibility of the commanding officer for his or her command is absolute…… The authority of the commanding officer is commensurate with his or her responsibility. While the commanding officer may… delegate authority to subordinates for the execution of details, such delegation or authority shall in no way relieve the commanding officer of continued responsibility for the safety, well-being and efficiency of the entire command.”

    1. Shockingly, I find the Naval beurocracy you cite to not be a model of efficiency.

      That policy leaves no room to cut out unneeded rubber stamping, because it equates responsibility with accountability.

      1. It’s super risk averse, and Naval leadership’s workload pays for it.

        1. S_0,
          It has to be risk adverse because of the hazardous nature of operations. In that case every moment is a matter of risk management.
          Or consider aircraft design, one has to achieve 6-sigma performance with many mediocre engineers and technicians. That costs efficiency and money.
          The executive has to decide what measure is the most important.

          1. He approves useless grants, he certainly knows a lot about life and death decision making.

            1. Yeah, when has basic research ever saved lives? Certainly not during a pandemic!

              1. “Certainly not during a pandemic!”

                Stealing valor.

                You don’t do the research, just shuffle papers.

                The file clerk at Pearl Harbor is not making life and death decisions for the navy either.

                1. Research needs to be paid for, and someone needs to help decide what to ask for and what to pay for.

                  And having a good military staff wins wars.

                  1. “having a good military staff wins wars.”

                    Clerks are not “military staff” except in the broadest sense. I’m sure the German file clerks were far superior to ours.

                    I salute your service!

                    1. Not in the military. I just don’t have much contempt for their file clerks’ service.

      2. Again, S_0, I disagree with you.
        The Naval perspective is the only one that enforces and reinforces the concept that in the end the line management is responsible for all decisions and actions.
        Your experts and staff advisers are only that. Advisers.
        I will tell you from long experience in managing potentially hazardous operations, is the the best way of assuring safety is the full responsibility of line management for safety, security and quality. You may call “conduct of operations” an inefficiency, but I call violations thereof accident reports and security incidents

        1. I suppose reasonable minds can differ, but if you rely on expertise to the extend that they practically make the go-no go decision, you should acknowledge that, and not pretend otherwise.

          We do that with our grants policies. Leadership delegates a bunch of stuff down to the SME because they don’t have the context of the regulatory ecosystem.

          1. “if you rely on expertise to the extend that they practically make the go-no go decision, you should acknowledge that, and not pretend otherwise.”
            I agree with you that a leader has to acknowledge “staff” or consultant expertise, but (and this happens with advisory and review panels) the executive may still have to say “thank you” and walk away from the advice because s/he cannot take refuge in “they told me to do it.”

            1. Delegation of responsibility is not delegation of accountability – the buck still stops here.

              Best practice is to ask to be cc’d on everything that goes out.

            2. the executive may still have to say “thank you” and walk away from the advice because s/he cannot take refuge in “they told me to do it.”

              And *that* is the problem with Higher Education…

              If the executives were *actually* held responsible for their commands — and couldn’t just go get another job somewhere else — a lot of the problems would evaporate. If the people running higher education *knew* that if things went bad they would become both unemployable and bankrupt (if not also incarcerated) — the irritatingly stupid things would stop happening.

              You simply would not have people like Evan Dobelle, who “[l]ess than a decade after [departing] the University of Hawaii system presidency amid accusations he had misspent money, lied and been unfit to lead, [was] back in hot water as president of Westfield State University in Massachusetts.”

              See: https://www.insidehighered.com/news/2013/09/24/fifth-presidency-evan-dobelle-faces-many-allegations-ended-his-fourth

              Don, it’s not just the USN — the Merchant Marine (i.e. Hazelwood) is the same way — and I’d like to see higher ed held to that level of accountability….

    2. Is it really your position that if a doctor at, say, a VA hospital makes a diagnosis, not only does the President have unfettered power to call that doctor up and order him to change that diagnosis on the spot, but a President who says he wants to leave the diagnosis decisions to the doctors is a chump, somebody who’s shirking his responsibility?

      1. No,
        That is not what the man said, and you know it.
        But the President does than the authority and power to order a top down review of medical procedures in that VA hospital.

        1. The statute says the CDC has the authority to decree measures to control epidemics. The CDC. That’s what it says.

          So Biden, a lawyer, clarifies that it’s the CDC making the decision. Says it’s a technical decision, being done on scientific grounds, a matter within the CDC’s technical expertise.

          That’s not shirking responsibility. That’s an action designed to take advantage of Supreme Court precedent saying that courts defer to technical experts on technical matters and technical decisions. Biden knows he’s not a technical expert on pandemics like the CDC is. He knows that because of that, courts wouldn’t afford him the same deference that technical experts like the folks at the CDC are due under the precedents.

          It may work. It may not. But it’s hardly maladministration, defying the courts, shirking responsibility, or anything like that.

          1. “clarifies that it’s the CDC making the decision”

            Is clairify the new term for lie?

            Cori Bush and Nancy Pelosi buffaloed him so he, or his chief of staff most likely, told CDC to issue the order.

    3. “The responsibility of the commanding officer for his or her command is absolute…”

      I like to remind people that Captain Hazelwood (of the Exxon Valdez) was in bed, asleep, when the Third Mate was unable to prevent the malfunctioning ship computer from running the ship up on a ledge, causing one of the worst oil spills in human history.

      Can anyone remember the Third Mate’s name? No — the evil person was Captain Hazelwood because *he* was “responsible.”

      Biden is responsible for his command — *he* is responsible for everything his government does….

      1. A captain is licensed as an expert on ship navigation, and the law charges him with expert responsibility.

        Here Biden is not licensed as an expert, and is not charged with being or regarded as an expert, on pandemics. And the law specifically charges the experts – the CDC – with the responsibility.

        I don’t understand why you aren’t arguing that the CEO of Exxon was responsible for the Valdez. The CEO is the captain’s boss in exactly the same way the President is the CDC’s boss. By acknowledging it’s appropriate to assign blame to the subordinate with the expertise and not the overall boss – the captain, not the CEO – your example actually supports Biden’s position. It doesn’t undermine it in the least.

        1. “Biden is not licensed as an expert”on ANYTHING….

          That’s the inherent problem with (small “d”) democracy, that’s the inherent problem with jury trials as well….

          The argument is that the selection process — in both cases — serves to get people who have the ability and judgment to evaluate the statements of experts.

          Conversely, Hazelwood graduated from maritime college in 1968 — what did he know about malfunctions in computers that didn’t even yet exist???

  10. I think Professor Blackman is likely right that the new eviction moratorium is likely too close to the old one to pass muster.

    But I think Professor Blackman is wrong that attempting to root the new moratorium and its decision-making process more closely in the language of the authorizing statute is either frivolous or represents maladministration.

    There have been many times in the past when Presidents and other government leaders, facing a court decision striking down a law or policy, have tried again with a slightly tweaked version in the hopes it would work. This has happened many times. It with happened with segregation. But it also happened with abortion, the death penalty, attempts to proscribe indency over the internet (Section 230 was devised after a previous law was struck down), the Violence Against Women Act, the Religious Freedom Restoration Act, and much, much more.

    Tweaking has often worked. Both Congress and the States got laws on virtually all these issues to stick, eventually, sometimes after multiple attempts.

    I don’t see President Biden’s attempt here as being particularly different from all these other attempts on all these other issues. It’s probably not going to be successful. But it’s hardly maladministratioj, defiance of the courts, or the many other things that have been said about it on this blog. It’s a very standard, common practice that both Republicans and Democrats have been engaging in for a long time. Sometimes it doesn’t work. Sometimes it does. Sometimes it takes multiple iterations before something finally passes muster.

  11. Let’s see…Prof. Blackman complains about:

    The moratorium extension
    The President used an outside source
    We still do not have an SG nominee

    Throw in some gripes about the liberal media, VP Harris, and the gay agenda and that about covers everything.

    And don’t forget to sprinkle in SOCIALISM or COMMUNISM for added bonus points.

  12. Various commetators have brought up analogies to the captain of a ship (for example, the Excon Valdez captain) or the commanfing officer in the military.

    I think these analogies are actually very good ones and illustrate the point. The captain of a ship and a soldier’s commanding officer are a mere subordinates, not the actual ultimate boss. The CEO of Exxon was the ultimate boss of the captain of the Valdez. Thr President is the ultimate boss of the commanding officer in the military. So why do we put responsibility on a mere middle-ranking person, not the ultimate boss?

    The reason is that both on a ship and in the military, the middle-ranking person has specific relevant expertise. The captain of a ahip is charged with knowing how to navigate it. The CEO of the parent company does not. The president is generally not a military wxpert. We charge the experts, not the suits nominally in charge of the experts, with the eesponsibility.

    Same here. The CDC people are doctors and scientists. Biden is a suit. That’s why the law charges the CDC, and not the President, with the responsibility.

    It works exactly the same way as ship captains and military officers. We similarly charge the responsibility to them, the top talent, and not the suits who nominally supervise them. It’s actually a very good analogy.

    1. It’s worth noting that the law often blames the talent and not the suits even when the suits caused the problem. For example, if the hospital chain CEOs cut the number of doctors and nurses on staff to the point where they can’t adequately handle the load, the remaining doctors and nurses nonetheless get blamed for any mishaps that occur as a result. The CEO isn’t even considered to be involved, let alone held responsible.

    2. “That’s why the law charges the CDC, and not the President, with the responsibility.”

      The law should charge the CDC with “controlling the disease,” or maybe merely making recommendations on measures the executive should consider to facilitate “controlling the disease.” Evictions are a third order effect of a disease that may or may not be “controlled,” depending on where you set the goalposts. Placing a moratorium on them is nowhere within the CDC’s function.

      1. This is bad policy, and also badly implemented.

        But it’s not an unreasonable argument that being evicted makes you more likely to get COVID.

  13. To be frank, Josh, you so often post nonsensical, if not entirely moronic, proclamations on things such as the need for Roberts to retire, that it’s a wonder what value you think your opinion holds with anyone but the most baseless partisans you seem to write for.

    1. Easy, IPLawyer . . . this blog (Prof. Blackman in particular) seems to be about the best conservative legal academia can muster these days.

      Sad, isn’t it?

  14. ok, I give up.

    I was the “key scholar” who supported the eviction order. In my defense, it was a prank call, and Biden could not remember who Laurence Tribe was, which allowed me to pull it off on the Zoom call (with the help of a facemask).

    I swear it was supposed to be a joke.

Please to post comments