Is a president of the United States flagrantly defying the Constitution an authoritarian act? A threat to democracy? Something that at least should be discouraged or frowned upon?
Judging by the reaction of Democrats and center-left commentators to the lawless last-minute decision of President Joe Biden’s CDC to extend an eviction moratorium sure to be struck down in the courts, the answer is emphatically “no.”
At the same time we are constantly being told that, say, a Texas election bill to prohibit drive-through voting or Tucker Carlson’s latest monologue on his influential Fox News program represents dire democratic backsliding, none of Biden’s allies are raising a peep of protest against a measure that represents exactly the sort of high-handed unilateral rule practiced by authoritarians everywhere.
Indeed, Biden’s handiwork is being celebrated as courageous and compassionate. What can he do as follow-up? Suspend habeas corpus? Quarter troops in people’s homes?
Biden’s eviction moratorium is of a piece with similar executive power grabs by his predecessors, particularly Barack Obama’s DACA and Donald Trump’s repurposing of military funding to the border wall. That doesn’t make it any better, in fact, it makes it worse. It means that executive lawlessness is becoming an ingrained part of our system. In its own right, Biden’s move is especially egregious.
Trump initially ordered an eviction moratorium in March 2020, which lapsed several months later. The CDC then ordered an eviction moratorium in September 2020, and it had extended it a couple of times under Biden, even while suffering setbacks in the courts.
There was never any warrant for the policy. The U.S. Court of Appeals for the Sixth Circuit wrote that the legal theory the government advanced would “grant the CDC director near–dictatorial power for the duration of the pandemic, with authority to shut down entire industries as freely as she could ban evictions.”
In its own consideration of whether to block the moratorium, the Supreme Court made its thinking clear. There were four votes—Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett—for blocking the moratorium by vacating a stay on a lower court order against it. Brett Kavanaugh pulled up short of this. He found that the CDC “exceeded its existing statutory authority by issuing a nationwide eviction moratorium,” although he voted against ending the stay, on grounds that the moratorium was expiring in a few weeks anyway. Still, he stipulated, “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”
Ah, yes—congressional authorization. What a groundbreaking concept.
This is how American democracy is supposed to work—if you have the votes to pass something through the House and Senate, and the president signs it, the measure becomes law (assuming it’s not unconstitutional). If you don’t have the votes, it doesn’t become law.
Given all the discussion lately about how our democracy may be entering its death throes, one would expect there’d be a renewed attachment to this essential part of the democratic process.
Even the White House briefly seemed on board relying on Congress, depending on the votes. “In light of the Supreme Court’s ruling,” White House press secretary Jen Psaki said last week, “the president calls on Congress to extend the eviction moratorium to protect such vulnerable renters and their families without delay.”
Then, a funny thing happened: Nothing.
According to news reports, roughly a dozen of House Speaker Nancy Pelosi’s own colleagues opposed extending the moratorium. So, a majority of the people’s representatives were against it—democracy had spoken.
That should have been the end of it. Biden himself referred to “the imminent ending of the CDC eviction moratorium.”
There was simply no legal authority to get around it. The head of Biden’s Covid task force, Jeff Zients, said the administration had “kicked every tire” searching for a justification, but had none.
“The president has not only kicked the tires; he has double, triple, quadruple checked,” declared Biden adviser Gene Sperling.
Then, under intense pressure from the left, Biden reversed course and decided to have his CDC order another extension without any plausible legal authority. Incredibly enough, he was explicit that “the bulk of the constitutional scholars say it’s not likely to pass constitutional muster.”
It’s not often a president of the United States admits he’s affirmatively violating his sworn duty to uphold the Constitution, but Biden did it—and got fulsome praise from congressional leaders of his own party.
Even though they have custody of the branch of government that is supposed to pass laws, Chuck Schumer and Pelosi were absolutely delighted that the head of the executive branch had, once again, demonstrated the continued erosion of their rightful prerogatives and their diminished role in our constitutional framework.
The true test of devotion to our democracy and constitutional system is if public officials honor it even when it produces unwelcome outcomes, or whether they try to find extra-legal workarounds. Trump abysmally failed this test after the last election, and Democrats—just as they did under Obama—are showing they are perfectly fine with unconstitutional governance so long as it produces their preferred results.
Remember that during their next lecture about how to protect American democracy.