The Volokh Conspiracy

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The Other Members of Biden's Constitutional Brain Trust Are Minow, Singer, and Dellinger

Pelosi to Biden: "Get better lawyers."


This story keeps on giving. Today, the New York Times dived deeper into the Biden Administration's extension of the eviction moratorium. There are four names on the byline–you know it's serious. And this story is very Pelosi-centric. Much of the narrative is told from the Speaker's perspective. The aloof executive truly seems like something of a bystander.

First, we learn that White House counsel Dana Remus told Biden that an extension would not be lawful. Indeed, the White House was grateful that the swing justice (once again) squished, but didn't want to try its luck:

Dana Remus, the White House counsel, briefed Mr. Biden about the opinion, saying Justice Kavanaugh's warning precluded an extension. Policy officials, who wanted a moratorium to continue, nonetheless concurred that legal concerns meant the existing ban could not be extended, viewing it as a lucky break that they had another month to send out more housing assistance funds to soften the impact. According to one top administration official, it was like "winning something by the hair of your chinny-chin-chin."

Second, Pelosi was pissed. She refused to accept Biden's decision that he could not extend the moratorium. The Speaker demanded that Biden "Get better lawyers." Sounds like something Trump would say.

The president demurred, saying the Supreme Court had made that nearly impossible. But the speaker continued pressing in what several White House officials said was the most animated they had seen Ms. Pelosi in years. . . .

Mr. Biden and his aides claimed their hands were legally tied by a recent Supreme Court ruling that strongly suggested — but did not explicitly say — that the nationwide evictions moratorium exceeded the government's emergency powers under a public health law. But Ms. Pelosi did not accept that explanation.

"Get better lawyers," Ms. Pelosi replied, according to a person familiar with the conversation.

I imagine that some of the lawyers who had advised Biden were named Garland, Johnsen, and Lederman. But their views were not to Pelosi's liking.

Third, Pelosi turned to Laurence Tribe, who had personally advised her on the legality of the extension. Pelosi had called Biden three times!

Ms. Pelosi cited the opinion of Laurence Tribe, a Harvard Law professor who had argued to her that it would be lawful for Mr. Biden to extend the moratorium again. She repeatedly called Mr. Biden directly — no fewer than three times since last Friday.

Fourth, Remus took a closer look at the policy in light of Tribe's arguments. And the lawyers took the Orval Faubus approach to constitutional law. There was no direct injunction barring the government from taking the action, so go for it!

As the political pressure mounted on Mr. Biden, Ms. Remus and other lawyers began taking another look at options that had looked less attractive at the beginning of the month.

There was widespread agreement, according to an official familiar with internal deliberations, that the Supreme Court's action in June did not amount to a definitive and binding precedent. That meant, for the moment, it would not be illegal for the government to issue another ban — especially one more narrowly focused on hard-hit counties.

Fifth, the article acknowledges the concern I raised on Friday: a loss could narrow the scope of federal quarantine laws, handcuffing the executive branch in future crises.

Yet there was also widespread concern that imposing such a ban beyond July carried severe risk that the move would be swiftly blocked in court. And a ruling definitively declaring an evictions ban illegal, they worried, could narrow the C.D.C.'s ability to take emergency steps in a future crisis.

There was no answer that came without serious downsides, but Mr. Biden's Monday instructions were to bring him all legally available options for the dilemma.

But the President apparently determined that the potential benefits outweighed the risks. What a shortsighted decision.

Sixth, we learn the identities of the other members of President Biden's constitutional brain trust: Martha Minow, Joseph Singer, and Walter Dellinger:

Around noon on Monday, Martha Minow, a Harvard Law School professor consulted by the Biden legal team, said she received a call from the White House. In a subsequent discussion with administration officials, Ms. Minow and her husband, Joseph Singer, another Harvard law professor who is an expert in property law, endorsed the idea of a new, narrower moratorium.

The worsening pandemic had changed the facts on the ground, they agreed, and a more narrowly tailored ban to just the hardest-hit counties gave the government a better argument.

But even though it would be legal for the administration to take that step under current governing law, she also warned that there was a significant risk that the government would ultimately lose in court.

Another professor consulted by Ms. Remus, Walter Dellinger, a Duke University law professor and former senior Justice Department official in the Clinton administration, offered a similar take. Mr. Tribe declined to comment on his advice, but published an opinion essay in The Boston Globe on Friday defending the new moratorium as "plainly lawful."

There you have it. Minow, Singer, and Dellinger warned Biden he would likely lose. That must be the "split" the President referred to. But he went with Tribe's green light.

Seventh, the White House lawyers explained the upside: even if he loses, there will be a delay, allowing money to be distributed.

The executive branch legal team conveyed the complex consensus to the president: He could lawfully act, but such an edict was unlikely to survive long in court. Still, for Mr. Biden, it offered — at a minimum — a way to alleviate the political pressure to do something, at a time when his agenda can ill afford alienating allies in the closely divided Congress.

And that's what Biden did. His own brain trust told him the Supreme Court would likely stop the action, but he went ahead with the idea to bide time. There we have it.

The more we learn about this story, the worse the Executive Branch's defenses will fly. I still think it's possible the Court enjoins the policy through an unsigned shadow docket entry with 1 or 2 dissents. Justice Kagan may think it better to join an unsigned, unexplained order, that avoids constraining federal power. Justice Sotomayor may dissent, without an opinion, to simply move onto the next controversy quietly.