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?

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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.

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  1. Pursuant to NYT policy, that opinion piece engages in absolutely unsupported both-sides-ism in denouncing Trump for Biden’s sins.

    1. It’s not both-sides-ism to note that after the original Congressional eviction moratorium expired last summer, the executive decision to use the CDC statutes to extend the moratorium was made in the Trump Administration.

    2. Hey, lawyer scumbags. The data that eviction moratorium reduces infections. It likely increases it by keeping people indoors, breathing to air of others.

      1. Face it, the moratorium needs to stay in place until every last blue collar landlord is bankrupt.

        1. Yes, the objections against the moratorium are definitely motivated by concerns over blue collar landlords!

          1. Martinned,
            Reading your comment, I am left with a question: Since the OBVIOUS result of most “Progressive” and ‘old-school’ Republican policies is the accumulating destruction of the middle class, is it your contention that they (Progressives and ‘Country Club’ Republicans) were so inept that they could not foresee the obvious result of those policies, or that they are sanguinary perpetrators of terminological inexactitudes? (But perhaps we should follow Glenn Reynolds’ advice, and embrace the healing power of “and”?)

  2. Well, duh. Legislatures legislating exposes them to political accountability. The moderates in the house did not agree to re-imposing the moratorium, because naturally they fear political backlash. Naturally, the legislature wants the executive branch to be accountable for the fallout of the moratorium, and vice versa.

    When I can get someone else to bear the cost of something… I always will. I like free stuff.

    But really, the fault lies with the cowardice of the Supreme Court (aka “minimalism”). They are overly deferential to vague statutory language, and when the executive grabs power ala CDC guidelines, they are content to issue a warning and allow themselves to be played.

    Until the SC grows a backbone and forces Congress to do its job , the problem will grow ever worse.

    1. “Naturally, the legislature wants the executive branch to be accountable for the fallout of the moratorium, and vice versa.”

      And equally… the executive branch pushed the responsibility to the Supreme Court.

      1. And the Supreme Court, in its turn, pushes the problem back on Congress by inventing a non-delegation doctrine out of whole cloth, but only for delegations that are unpopular.

        1. The SC is supposed to be above politics with lifetime appointments. Yet Roberts and Kavanaugh seem deeply concerned about how they are seen inside the D.C. beltway.

          1. Even Thomas was suddenly completely non-originalist when social media started fact-checking Trump. Don’t pretend that this is just a Beltway thing…

  3. This finally starts to get closer to the problem – there is a systemic gravity towards executive power in our government that is unhealthy.

    I’m glad that at least some those on the (R) side can recognize that when their guy is out of power. (Not trying to imply Jonathan was a Red Hat.)

    1. It’s almost like people are people. It almost like Greece, Rome, France, Germany, USA, and other Republics were or are unstable and require significant positive action to remain as founded. Entropy, dereliction of duty in exchange for claims on others lead to regression to anarchy, tribalism, and despotism (the base state of man). We are not inherently good. It takes work. We are not perfectible. We are lazy. And greedy. And jealous. But we are improvable. Libertarians elide that by saying a good system will align the greed and laziness and industry and selfishness in a productive manner that makes everyone better. I am coming to wonder if they are just naïve communists (if that is even possible). Who creates an maintains this utopia of liberty and productivity with rights for everyone? What do the maintainers and creators get, being but men who are lazy, greedy, jealous that makes them want to do this? Hmm?

  4. As if the eviction mortatorium could possibly have any impact on controlling the spread.

    The studies showing a positive impact on controlling the spread makes the ferguson model look like the gold standard.

  5. This is basically the one virtue of having anti-democratic things like gerrymandering, the electoral college, and overrepresentation in the senate for rural states: It increases the chance that at least one house of Congress is controlled by a different party than the president’s party.

    1. Which fact has saved our asses a thousand times over. And which as to the EC and the Senate is the fucking intention.

      1. Not the intention of the EC.
        Was for the Senate.

        I remain much more sanguine than my partisan fellows about the EC. Not exactly supportive – I won’t weep if it dies – but I think it’s far from clear popular voting for President is superior.

        I’m not a worshiper of the Founders, but I really do like the mix of populism/elitism/federalism they came up with.

        1. It would be better if the anti-democratic elements didn’t all favour the same parts of the country/same parts of the political debate. Basically, given the political realities of the last few decades, it is unlikely that a Democratic president will have a Democratic Congress (like Biden now has), but much less unlikely that a Republican president will have a Republican Congress.

    2. Amen, there is a great virtue in having divided government, even in a time beset by polarization.

      1. Conceptually, yes. But in practice, with our partisanship and many-veto setup, it’s pretty bad.

        Nothing wrong with a resolute government, but an unresponsive one is not worth.

  6. My tenant just got two more free months in my apartment and a tenant who needs a home and who wants to pay cannot move in.
    Everybody loses, except the tenant who has a job and who can pay but won’t.
    The rule of law us dead, just like in all Socialist countries.

    1. That is just silly. Nowhere in the eviction moratorium does it say that anyone can live anywhere rent-free. Landlords all over the world, including myself, are perfectly capable of enforcing rental agreements without the threat of eviction.

      1. How do you make space for the guy who wants to pay? Because you can’t evict the one who doesn’t.

        So….how do you do it?

        1. Give the guy who wants to pay rent the key, and an alibi.

      2. Really? So how, precisely, how do you think the landlord should enforce the rental agreement and get paid without that threat?

        1. The same way you enforce any other contractual obligation to pay.

      3. Really,
        I think you owe us an explanation of that. In CA it is damned hard to get rental contracts enforced.

      4. Be honest.
        It was never intended that the tenets would pay the back rent. How do we know that?
        The government allocated $46B to compensate landlords, of which only $3B has been dispersed mostly because of non-cooperation of tenants.
        It was always intended that landlords would “take a haircut.” How do we know that?
        Because no extra money was allocated to make the landlords whole.

        We are still waiting to hear how you enforce rental agreements without the help of the police power of the state.

      5. Yeah i did figure you’d answer that because there is no answer.

    2. Ghost, borrow a hungry pitbull. Zap the dog with a taser. Then go visit the tenant, and say, you are staying in the unit, until he moves out. The lawyer profession is total garbage. Only self help is effective.

  7. Decisions of life and death like this carry little weight in corruption-space. Politicians go into politics to get rich being corrupt. Deciding who lives or dies involves getting elected, not in being corrupt once elected.

    Hence choosing to do something means pissing off millions of rental owners, or tens of millions once talking head rhetoriticians get moving on death counts.

    Best to avoit id possible and wait it out, hiding, awaiting your real goal, as a corrupt politician:
    donations and “donations” for spending, or backing off of purely economic interference (regulation) a little bit.

  8. “Why wouldn’t the legislature . . .”

    This is yet another side effect of anti-democratic institutions that I keep railing about, such as two senators per state and gerrymandered house seats. This produces the rather nasty side-effect of there being no real political incentive to do anything, because the system protects them from any real consequences.

    If we had a truly democratic system, in which a New Yorker has just as much say in the Senate as does a Kansan, one side or the other would win a decisive election victory, and would then govern. And if its policies turned out to be bad, it would then have its head handed to it in the next election. The current political mess that we have, thank James Madison.

    1. This system saves us time and time again from political zealots. If it was like you want right now the government would just permanently take the property of the evil landlords. And maybe force them into sensitivity training because their objection to being robbed proves that they’re racist.

      For a long time we’ve been protected from the crazies by this system.

      1. Bevis, that might have been a plausible argument before Donald Trump. In his case, not only did the system not protect us from the crazies, it put one in the White House. You may disagree with Hillary Clinton’s political views, but we would not have had the four year shitshow that we recently concluded. After Trump, the idea that those anti-democratic measures protect us from demagogues and zealots is just laughable.

        1. Other than the covid, which was not Trump’s fault, can you tell us how the country was worse off after 4 years of Trump than 8 years of Obama?

          Just some objective measurement that is reasonably related to the Trump administrations responsibilities.

          I might have been receptive to a deficit argument, but if that was a concern Biden has blown Trump’s deficits out of the water.

          1. Obama didn’t do everything he could to antagonize our allies and wreck international relationships his predecessors had spent years building. Obama didn’t start a trade war that devastated our farmers. Obama didn’t legitimize white supremacy. Obama didn’t make fraudulent claims about a stolen election that resulted in January 6. Obama didn’t coarsen our political discourse. Obama didn’t try to use the Justice Department as his own personal law firm, nor did he corruptly use the presidency to further his business interests.

            If you honestly do not see a difference between Obama and Trump, then at bare minimum you need to see an eye doctor.

            1. Yeah, Trump’s trade policy was a disaster. For the rest of it? You need to take off your partisan glasses.

              Look at Obama’s prosecution of whistleblowers and others. His abuse of the Justice Department was just as bad as Trump’s. And he was at least as polarizing as Trump in the “political discourse” category. Neither one of them even pretended to want to unify the country. Obama didn’t legitimize white supremacy – and despite a lot of media hype and out-of-context quotes, neither did Trump.

              1. Some people found it polarizing that a strong black man got uppity but that’s not the same thing as Obama himself being polarizing.

                1. Assuming bad faith is certainly an honest discussion tactic, and nothing for which you ought to feel shame.

            2. I’m asking for an objective measurement of the country being worse off. Misery index, unemployment rate, inflation rate, GDP, right/wrong track polling, fewer people insured, etc.

              If the Trump Adminstration was such a shit show as you put it, certainly with all the numbers the government and pollsters collect about the state of the country, surely you can find some evidence, can’t you?

        2. It worked fine because trump was neutered in one election. Just as Biden will be.

          You do not want people like AOC OR Cori Bush or MTG or Gaetz governing unimpeded. Each pandering to the hardest core of their side. It would be a disaster.

          1. But the thing is, anti-Democratic institutions make crazies of both left and right — AOC/Cori Bush and MTG/Gaetz — more likely. Imagine Trump had gotten the GOP nomination in a nation without the electoral college and without two senators per state. His crazy base would have gotten thumped in November and the grown-ups would have then re-taken control of the Republican Party. Instead, the insulation those anti-Democratic institutions offer helps nuts keep getting re-elected.

            Gaetz and Greene would not win without gerrymandered seats; neither would Cori Bush. Gerrymandering does many things, and one of them is to put lots of crazies in the same district. Imagine Gaetz, Greene or Bush having to sell their views to normal people.

    2. K_2,
      Your claim actually is not true. The very same system works as hoped for in the past. You are correct that it is not working well now.
      But behind your complaint, it detect a longing for a strong 1-party system in an over urbanized society.

      1. Don, while obviously I, like everyone else, prefer that people with my views be the ones that hold power, the longing is for an honest election system in which nobody has an unfair advantage. You’re right that it worked better in the past than it does now, but that doesn’t change the fact that it is a major contributor to why it is not working now.

        Just to give one example, the GOP has spent the last twenty years doing everything it can to piss off New York and California explicitly because it knows that there are no political consequences for doing so. When a major party doesn’t need to care about our two largest states, that all by itself says there’s a problem.

        1. NY has not been one of the two largest states for some time.

        2. Which party doesn’t care about carrying California AND Texas? Or Florida, because it’s third.

        3. US States by Population.

          1. California
          2. Texas
          3. Florida
          4. New York

          How would you say the Democrats have acted towards Texas and Florida lately? Have they done anything that might irritate the people in these states?

          1. OK, I’ve got three people jumping on whether New York is our second largest state, and nobody responding to my central point that the current system allows the parties to completely ignore large states with no consequences. That says something.

            1. The point of the system was to keep the large states from running roughshod over the smaller states. It works as intended. I don’t want it changed because it keeps people like you from fucking up my medical car and forcing me to use shitty energy.
              I like it just the way it is.

              New York and California and Texas are perfectly capable of governing themselves. If they want huge policy changes in those areas, they can afford them. The problem comes when they want to fuck up my life. Sorry, but no.

              Oh, and one other point. It ain’t the blue states and red states. It’s the cities against the rest of us. Rural California has more in common with Texas than it does San Francisco.

              1. But what we have instead is smaller states running roughshod over the larger states; what makes the smaller states any wiser or better at governance than the larger ones? You’re basically acknowledging that you don’t care if the system is fair or even workable so long as you get what you want. And there are some policies that only work if they are implemented at the national level.

                So, we’ll muddle along with the worst government gridlock in the entire Western world, continuing to get the worst of all possible worlds, all so you have a veto over what the majority of the country actually wants.

                1. “Running roughshod”. What are the smaller states forcing the larger states to do? Absolutely nothing.

                  You’re defining running roughshod as declining to be dictated to by the large states. The larger states (actually a handful of cities) are pissed because they can’t force everyone to do what they want.

                  Note that they could pass those policies for themselves, but it’s no fun if you can’t boss around your inferiors.

                2. And it’s not ok because I get what I want because I don’t want anything. I don’t you to get what you want because it will diminish my quality of life if you do.

                  1. Yours is the philosophy the petulant teenager who thinks his own immediate gratis the only thing that matters. There are reasons more people choose to live in blue areas, and I’m not even convinced your quality of life would suffer if Nancy Pelosi became supreme dictator for life.

                    1. If this isn’t a case of projection, I don’t know what is.

                      People who live in blue urban areas want to push on the rest of us:
                      electric cars, green energy, high taxes, etc.

                      So the ones who are thinking of their own immediate gratis are on your side.

                3. And there are some policies that only work if they are implemented at the national level.

                  The states are capable of implementing what ever they want.

                  What you consider a bug, (federal legislative grid lock) is really a feature. A intentional design feature.
                  Remember the Federal govt was created to have strictly limited enumerated powers. Everything else is reserved for the States.

          2. seems like the people of NY are pissed off at the people of FL because they havent killed as many as coumo

        4. California and New York are largely sovereign states and have shown time and again they can chart their own courses. They both have large diversified tax basis, educated affluent citizens, they can run their own affairs as they see fit, as long they don’t try to start any wars, foreign or domestic.

          There major complaint about ill treatment was a tax provision that only benefitted affluent taxpayers by compensating them from the federal treasury for high taxes at the state and local level. A provision that Democrats have decided they don’t want to rescind.

          About the only thing that prevents California and New York from instituting their own socialist paradises, single payer healthcare, cradle to grave welfare, redistribution of wealth, is that they can’t erect an iron curtain to stop their citizens from fleeing.

    3. “one side or the other would win a decisive election victory”

      House has a 5 vote majority. Dem victory was hardly decisive.

      1. Like I was saying about gerrymandered seats.

      2. 50.7% of the vote vs. 47.7% gets you a 5-vote majority in a legislature with 435 seats. Isn’t democracy great?

    4. Please explain how your desired universal at-large system would provide accountability in such a way that legislators would never avoid legislating on no-win topics like this one?

      1. I’m reluctant to say “never”, but in general, Mitch McConnell knows he can count on a bunch of rural states outvoting California and New York, so he can put forward wildly unpopular proposals — or block wildly popular ones — with no risk of paying any cost for doing so. It renders public opinion essentially irrelevant and, hence, removes some measure of accountability.

        1. Even if you were accurate, the eviction moratorium has absolutely nothing to do with any of that. Even if there were pure at-large Congressional elections, you’d still have same situation right now: Congress wants to look like they are doing something but don’t want to actually take responsibility for doing it.

      2. The way to have legislative accountability is to amend the APA so that no administrative rule becomes binding until a bill validating that rule becomes law. The administrative state is the enemy of accountability.

        1. no administrative rule becomes binding until a bill validating that rule becomes law

          So basically you’re proposing to abolish administrative law? I guess that’s certainly one thing that the US might do to completely cement its decent into an under-governed hellscape.

          1. Congress manages to pass dozens of bills naming Post Offices and the like; you think it would be impossible for them to pass a bill that formally instituted the proposed regulation?

            I mean, I have a low opinion of Congress, but I must admit even I assume they are capable of voting on at least one regulation bill per year.

            1. Given how many regulations it plausibly takes to run a country as large and complex as the US, and how many people it currently takes to draft all those regulations, I absolutely promise you that the suggestion of my learned friend would unavoidably reduce the number of administrative regulations by about 99.99%, which effectively the same as abolishing the administrative state entirely. This idea wouldn’t have even worked when Washington was president, and the country has gotten a lot bigger and a lot more complex since.

    5. And, for people like you, who obviously WANT to be “governed”, I am sure that is a net positive. For those of us who would prefer to order our own lives, and address our own problems in our own ways, it is not. “No man’s property or liberty are safe so long as the legislature is in session” was a cautionary statement, not a prescription for ‘governance’. I would suggest that you ‘grow a pair’, but I am not confident in your ability to do that.

    6. Simple fix. Amend the Constitution.

  9. 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.

    Well, there’s no constitutional derangement in the president being eager to endorse Congress’s authority (which it arguably has, although probably not) and refusing to exercise his own authority (which he clearly does not have). That’s the way it’s supposed to work. The derangement came later, when the president changed his mind and purported to exercise powers he said he didn’t have.

    1. “The derangement came later, when the president changed his mind and purported to exercise powers he said he didn’t have.”

      The president changed his mind, and purported to exercise powers he previously said he didn’t have???????? Funny, I vaguely remember having seen this play before. I believe the stars were Richard Nixon and Barack Obama (and a few others, like Woodrow Wilson and Teddy Roosevelt).

      If statist authoritarians want to rule, they will pull Constitutional exegesis out of their nether regions to justify their lust for power – it is incumbent on US (you know, “we, the people”) to stand up and say “ENOUGH!!” If we don’t, is it the fault of the authoritarian, or the wimp who remained quiet while it happened?

  10. If the Democrats want a moratorium, they should pass it in the House and see if it fails in the Senate.

    I agree this matter is Congress’ responsibility. And I completely agree that it is rediculous for members of Congress to flat-out fail to do their job to legislate and then try to blame their failure to legislate on someone else.

    1. Well, no. If they want a moratorium, they should pass it in the state legislatures they control, and leave the red states to exploit the poor as they always have.

      1. If they want a moratorium, they should pass it in the state legislatures they control, and leave the red blue states to exploit the poor steal from the productiveas they always have.

        FTFY

      2. Your comment is perhaps the most bomfozzlingly inane statement I have read on the Internet – which is, I agree, quite an accomplishment. How many paychecks have you gotten from people on welfare (assuming, of course, that you aren’t a politician).

        One thing that is utterly predictable about statist authoritarians, such as yourself, is their consistent use of the strawman and the scapegoat to disguise their lust for power.

  11. “It is possible that any effort to enact a moratorium would be blocked in the Senate, but we do not know.”

    Oh you pretty damn well know. So does Biden, and Manchin, and Simena, and everyone here.

    1. Then it should fail, and the taking that Sleezes such as Trump and Biden call a moratorium should be

      1. I would go further. It did fail. Pelosi could not get the votes.

  12. Well if you can’t even convince the members of your own party, then it must be a flawed policy and an overreaching intrusion into people’s rights.

    It’s not the Supreme Courts job to bail out an administration that can’t pass it’s policies when it controls both houses.

    And I might ask, why didn’t Pelosi at least demonstrate the eviction moratoriums popularity by holding a vote in the House? Maybe she doesn’t have the votes there either.

  13. First, I admire your choice of “rule” rather than “govern”; good luck dodging the insurrectionist label.
    To answer the questions:
    1. The moratorium is not needed.
    2. The legislature will not take action because the supreme court is meaner to the legislature than to the executive drones. Why go on the record voting for something unconstitutional when you can get the flunkies to do it?

  14. The Supreme Court just enjoined enforcement of New York’s eviction moratorium, which allowed tenant self-certification of financial hardship. Breyer dissenting, joined by Sotomayor & Kagan.

    https://www.supremecourt.gov/opinions/20pdf/21a8_3fb4.pdf

    Don’t think that bodes well for the CDC eviction moratorium, and I suspect the opinion may say something about the Administration ignoring Justice Kavanaugh’s concurring opinion emphasizing the need for authorizing legislation.

    1. So I guess we’re no longer opposed to emanations and penumbras?

      1. Which emanation or penumbra is being invoked here?

  15. Not passing an eviction moratorium is legislating. It’s not up to the CDC to enact legislation the legislature has refused to move on.

  16. President Biden stated that he hoped litigation about the admittedly unconstitutional CDC order would buy some time to distribute some money. The delay tactic seems to be working, but there is not much word on how the money part is working out. In the interim, the courts do their part:

    https://twitter.com/justlawfulblog/status/1426257813320392704?s=20

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