The Volokh Conspiracy

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Separation of Powers

"This Is No Way to Rule a Country"

If an eviction moratorium is needed, why wouldn't the legislature try to enact one?


Prof. Greg Weiner (@GregWeiner1) ponders the broader implications of how the federal government re-imposed an eviction moratorium in this New York Times op-ed. It begins:

A curious constitutional drama unfolded in the nation's capital last week. Having failed to pass a moratorium on evictions, members of Congress took to the steps of the U.S. Capitol to demand that President Biden impose one.

For his part, Mr. Biden strode into the White House briefing room and suggested that the prerogative to make policy on the issue lay with Congress.

Soon enough, though, Mr. Biden relented, and Democrats celebrated. As policy, it was a progressive victory. Constitutionally, it was both troubling and bizarre.

The issue was not simply whether the moratorium was constitutional, though the federal courts have questioned the statutory authority the Centers for Disease Control and Prevention claimed. The underlying constitutional derangement pertained to the way members of Congress and the president were eager to endorse each other's authority without exercising their own.

As a majority of the Supreme Court seems to recognize, neither the text of the underlying statute nor the CDC's relevant regulations anticipated the use of an eviction moratorium to counter the interstate spread of disease. Congress could address this (as it did last year) by expressly delegating such authority, or by enacting a moratorium directly, but they have not even tried.

It is possible that any effort to enact a moratorium would be blocked in the Senate, but we do not know. More importantly, Weiner notes, the episode highlights how the legislature has become averse to legislating. This is not new, but it appears to be getting worse. This has a range of implications (some of which Chris Walker and I explored in this article).

This is not a partisan issue. Republicans are no less guilty of the failure to legislate than Democrats. Writes Weiner:

The acid test of separation of powers is whether members of Congress are willing to assert their authority against a president of their own party. Democrats failed that on evictions, just as Republicans did by handing off authority to Donald Trump. Given this bipartisan consensus for presidential authority, it may be time to acknowledge reality: The concept of the separation of powers — which depends on members of Congress unifying to protect legislative power — has collapsed in the United States. We have become a de facto parliamentary system in which competing parties battle for executive power. The problem is that we have acquired all the vices of such a system but none of its virtues.

The whole op-ed is worth a read.