The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Thursday afternoon, President Biden answered a reporter's question about the revised eviction moratorium. His answer sheds even more light of how the executive branch has outsourced its constitutional judgment to law professors.
First, Biden explains that he talked to several constitutional scholars. The Washington Post had only reported that Biden spoke to Laurence Tribe.
Q How is the eviction moratorium constitutional, sir?
THE PRESIDENT: I think it is. But there's a call — there are a number of constitutional scholars — I spoke to a lot of constitutional scholars. Let me explain the last — the last time why I did what I did. . . . The Court ruled by — and made it very clear — the Supreme Court said, "You can't do that. You don't have the authority to do that." And — although it was a 5-to-4 decision. I got on the phone and contacted a number of constitutional scholars I've relied on for years, beyond my own team, and there was a split. And the consensus of the folks that I have used the most said, "We think it is — you have the authority to do it, but, in this court, who knows."
What a remarkable statement. There was a split among the people he has "relied on for years." Yes, dyed-in-the-wool progressive law professors told Biden to stop. Others said to go. But who did Biden listen to? "The folks that I have used the most." Biden still refuses to take ownership of this decision. He is preemptively pinning the blame for defeat on unnamed law professors.
Second, Biden repeats that he would not tell DOJ and CDC what to do:
Last point I'll make: So, what I decided to do, I did not tell the CDC. I made a commitment to you all I would not tell the CDC what they should do, and I would not tell the Justice Department who they should prosecute. And I've kept that commitment.
Who the hell is running the executive branch? This argument turns the separation of powers upside down. I can understand why Biden would not interfere with DOJ to preserve prosecutorial independence. And, it makes sense for Biden not to mess with the CDC's apparent health expertise. But it is a dereliction of duty for the President to shirk the responsibility of whether his subordinates are acting lawfully. He has an obligation, always, to take care they they are faithfully executing the laws. He can't pass that buck. We've moved from the unitary executive to the solitary executive to the aloof executive. The buck stops with the Surgeon General, apparently.
Third, Biden tries to explain--meekly--why the new moratorium is different from the old moratorium:
So I asked the CDC to go back and take another look at was there anything possible and check with the legal scholars as well. . . . They went back and they concluded that if we had a completely different (inaudible) — we did not try to continue the existing moratorium; it was a different moratorium with another rationale. The rationale was that because of the COVID spread of the virus so rapidly, that — and the Delta COVID — what happened was they said: All those — all those counties that, in fact, are in a situation where they are in that red zone, that they — we should hold for another month — or I think they said two months — the ability to evict people from those facilities. And I said, "Okay, thank you."
Yes, we got it. "Okay, thank you." Delta is spreading, and the new order is limited to 90% of the country. I understand the argument in the abstract. This order is, at least on paper, more closely tied to the Surgeon General's delegated authority to limit the spread of disease. But as a practical matter, it is indistinguishable from the old order. The real reason for this order is to bide time.
Fourth, Biden says the quiet part out loud. He explains the primary purpose of this order is to buy time while the states distribute the money--hopefully longer than a month.
My greatest concern is — I have three concerns. One, we have $45 billion sitting in the state treasuries right now that were designed specifically to help landlords be able to not have to go bankrupt so that they — and keep those renters who couldn't afford to pay their rent because of the pandemic, because of unemployment being as bad as it was since the Great Depression.
We gave it to the states and localities to be able to keep renters in their homes, as well as — as well as being able to continue to keep their business going. And I went ahead and did it, but here's the deal: I can't guarantee you the Court won't rule if we don't have that authority, but at least we'll have the ability, if we have to appeal, to keep this going for a month at least — I hope longer than that. And in the process, by that time, we'll get a lot of (inaudible).
He said it! He wants the appeal to drag out as long as possible--a month, maybe longer. Best case scenario is to drag it out so long, the order simply expires. Even if government ultimately lose, it won't matter because the money will be distributed out.
Fifth, he offers a snide attack at "this Court."
And the consensus of the folks that I have used the most said, "We think it is — you have the authority to do it, but, in this court, who knows."
No, he didn't refer to "Obama judges"or "Trump judges." But the phrase "this Court" is a clear reference to the Court's conservative bent. He's talking about one Trump judge in particular.
Now, all eyes turn to Justice Kavanaugh. The Wall Street Journal editorial board is not holding back. They wrote about DOJ's latest defense of the eviction moratorium:
The Justice Department's real position is that legal technicalities require the judiciary to make a chump out of Supreme Court Justice Brett Kavanaugh. . . . If the judiciary doesn't want to find itself getting jerked around like this, then it shouldn't give Mr. Biden what he wants. Meantime, Justice Kavanaugh ought to conclude that judicial forbearance is a fool's errand.
Chump. Fool. Jerked around. And you thought I was tough on BK?!
The President is daring the Court to drag out this process. If there are five votes to enjoin the policy, the majority should issue the order right away, with an opinion to come at some future date. Or, even better, start writing the opinion now, there's no reason to wait. That advice goes for Justice Kagan as well. The dissent writes itself. And the Chief can slap together a one-paragraph dissent about irreparable harm in 30 minutes.