The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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?