The Volokh Conspiracy
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Goldsmith: "The Anatomy of a Screw Up: The Biden Eviction Moratorium Saga"
"It is hard to fathom how the experienced policy advisors and lawyers atop the Biden administration could have screwed up so badly."
I am not alone in raising red flags about the Biden Administration's conduct with respect to the eviction moratorium. (See my prior writings here, here, here, here, here, here, here, and here). Today, Lawfare published two detailed pieces about the situation. First, Jack Goldsmith wrote a post titled "The Anatomy of a Screw Up: The Biden Eviction Moratorium Saga." Second, Alan Rozenshtein wrote a post titled "Did the Justice Department Give President Biden Legal Advice on the CDC Eviction Moratorium?" Read both of the pieces carefully. Here, I'll excerpt a few highlights.
The introduction of Jack's piece captures many of my reactions to the Biden Administration's screwup:
It is hard to fathom how the experienced policy advisors and lawyers atop the Biden administration could have screwed up so badly in connection with the administration's defense of the Centers for Disease Control and Prevention (CDC) eviction moratoriums. The administration made it seem like it was acting blatantly unlawfully, when it was not. It made it seem like it needed bottom-covering arguments from law professors outside the administration when the arguments that the Justice Department of two administrations had made in defending the moratorium ban sufficed. And it made it seem like Speaker of the House Nancy Pelosi, rather than Attorney General Merrick Garland or White House Counsel Dana Remus, was directing legal decisionmaking in the Biden administration. All of this happened because the Biden administration over-reacted to a Supreme Court order that refused to halt the CDC moratorium. The administration's rule-of-law credibility is the big loser; and the Supreme Court's shadow docket the big winner.
Jack alluded to another credibility problem. OLC and the SG recognized that they had valid arguments, but didn't want to burn credibility with the Court. The Times reported that administration lawyers felt lucky they got a reprieve from Justice Kavanaugh.
The department, and especially the Solicitor General, might have worried about credibility before the Supreme Court in light of its June 29 order, even if the order technically had no legal consequences. Or, more powerfully, the Justice Department might have worried that a likely and perhaps quick loss on the merits in the Supreme Court on a renewed eviction moratorium might limit the CDC's ability to take vital emergency action in the future. To say that the administration had legal options to renew the eviction moratorium is not at all to say that it would be a good idea to do so. The point is simply that no legal or ethical obstacle stood in the way.
Now the SG faces the worst of all worlds. I think Jack left out the most important aspect of the credibility problem. Biden said that he expected to lose, but hoped the policy would remain in place for a month so the money could be distributed. We are teetering very close to a bad faith abuse of legal process. And the Chief will not be pleased.
Finally, Goldsmith writes how these actions give the impression that DOJ "acted lawlessly.":
These revelations, in light of the earlier administration statements, made it seem like the administration had concluded that it could not lawfully renew the CDC moratorium but flipped its legal view under ferocious political pressure from Pelosi and Bush, with the assistance of cherry-picked legal advice from professors close to the administration. It seemed, in short, like the administration acted lawlessly to satisfy the fury of the left wing of the democratic party. This impression was deepened by the left's reaction to the administration's apparent flip-flop. Representative Alexandria Ocasio-Cortez, for example, described the flip-flop as "a huge victory for the power of direct action and not taking no for an answer."
Now, let's turn to Alan's piece. OLC is in a very precarious position. The Office, which is staffed by leading law professors, was simply cast aside. After all, Pelosi said "get better lawyers!" And the President threw OLC under the bus by going to law professors outside the administration:
Taking this story at face value, the obvious question is: where was the Justice Department in all of this? What was the position of the Office of Legal Counsel (OLC), which would ordinarily be the last word on high-profile, complex legal questions such as this one, or the Office of the Solicitor General and the Civil Division, which have responsibility for defending the new moratorium in court?
There are presumably three options. The first is that the Department of Justice told the White House that the CDC did not have the authority to issue a new eviction moratorium and the White House ignored that advice. The second option is that the department wasn't consulted, either because of an oversight from the White House or because the White House, suspecting that the department would return an answer it didn't want, simply didn't ask the Department of Justice. The third option is that the department was consulted, told the White House that the CDC did have this authority, and this fact has simply not been disclosed in the White House's public messaging so far. More reporting is needed on this question, but it's notable that, when Politico's Josh Gerstein asked Attorney General Merrick Garland whether the department signed off on the eviction moratorium, Garland did not answer the question.
Alan concludes:
If Pelosi really did tell Biden to "get better lawyers" and Biden responded by going outside the Department of Justice, that should set off alarms about the confidence that Biden has in the department's traditional role as the main source of legal advice and analysis for the executive branch.
There will be much more fallout from this incident. People in DC who are burned tend to talk to the press. And the Supreme Court will not quickly forget about this incident.