“[The Chief Justice] has made his decision, now let him enforce it.”
Who said it better, battle-scarred Andrew Jackson or liver-spotted Joe Biden?
Fine, nitpicky reader. Neither man said those exact words. The phrase is apocryphal. Following the Supreme Court invalidating Georgia’s laws governing Cherokee territory in Worcester, President Jackson wrote in a letter to General John Coffee: “the decision of the [Supreme Court] has fell still born (sic), and they find that it cannot coerce Georgia to yield to its mandate.”
In a similar sentiment, Joe Biden told reporters after unilaterally extending the Center for Disease Control’s eviction moratorium that was already deemed unconstitutional: “Well, you see, here’s the deal. The law, or thing or whatever, is gonna happen to, er, um, help people… um… things… to stay there and… not, well, whatchamacallit, the thing!”
Admit it: you thought that was a work-perfect quote, didn’t you? Well, it wasn’t. (I eagerly await Lorne Michaels’s call to play Biden next Saturday night—all I need is some stippling and putty wrinkles.) What Biden actually said when questioned on the blatant illegality of his continuance order: “I can’t guarantee you the court won’t rule that we don’t have that authority but at least we’ll have the ability to, if we have to appeal, to keep this going for a month-at least. I hope longer.”
Since “explainer” journalism is so popular these days, here’s the context: the Supreme Court, in an opinion penned by conservative monster-turned-moderate Brett Kavanaugh, ruled in June that the eviction moratorium first imposed by the Trump Administration was unconstitutional. However, it could remain in place until July 31st because, well, hey, it was ending soon anyway. So why not—where’s the harm? What’s another rent-less month for landlords already out a year and a half of earnings? And besides, if slumlords really are in the red, they can sell up the property and let the diligent homesteaders at Blackrock take the keys. Neoliberalism FTW!
White House advisor Gene Sperling confirmed the CDC (notice the absence of an “H,” as in “housing,” in the agency name) was “unable to find the legal authority” to continue its eviction prohibition. Biden echoed the determination in a press conference: “The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster.”
Even after acknowledging the sheer unconstitutionality of reimposing the eviction pause, Biden said to heck with it and went realpolitik, knowing full well it would get shot down in court, but counting on our gummed-up, byzantine legal system to take a few weeks, maybe months, to actually force an injunction. In the meantime, nobody gets evicted. It’s like killing a witness before he can testify against you: another crime committed but the stoolie is six feet under and can’t bear witness. The ends justify the means, in that pithy Machiavellian parlance.
The right is, of course, aghast over this usurpation of power. National Review’s Charles Cooke calls it an “egregious” act of executive overreach. David Harsanyi described it as “lawbreaking as a moral good.” (He previously called the same moratorium under Trump “state-sanctioned theft.”) Philip Klein is urging Republicans to “shut down the Senate” over the whole affair—a response so tantalizing to libertarians that it will never, ever, ever in a million years, happen.
The entire gambit seems like a big hocked loogie in the face of the rule of law. And it might not stop at eviction cancelation.
An emboldened Biden Administration announced an extension of the student loan repayment suspension and is even floating loan forgiveness—the latter part Biden has admitted he lacks the statutory authority to carry out. White House press feeder Jen Psaki also hinted that her boss is considering putting over the expiration of the $300 unemployment supplement.
Whether or not the executive branch has the authority to keep these provisions alive is moot: the practicality of rescinding either after enactment is on par with crossing the Atlantic in a cardboard box. What would happen? The IRS would take back the disbursed funds from the jobless? Indebted students would retroactively owe more? Fat chance.
What Biden is doing may seem like an affront to that quaint parchment rulebook mothballing in the National Archives. Conservatives may want to burn their Heritage Foundation pocket Constitutions in shame. But Biden isn’t really governing out of legal bounds. That his prolonged delinquent-expulsion hiatus will be ruled unconstitutional is a foregone conclusion. Nevertheless, he can still sign the order and tip the first judicial domino in line, letting the rest fall in sequence until a court interferes. There’s nothing extralegal about letting the legal system work its course.
A former coworker, a writer of high school civics curricula, once pointed out this loophole to me: that courts can strike down laws, up to and including the Supreme Court, and legislatures can just pass those laws again and wait until the inevitable lawsuits wind through the litigious gauntlet. The process can proceed in perpetuity. In theory, the U.S. Congress can pass a bill legalizing slavery, gifting Nevada over to California as a serfdom, the President could sign it, and it would go into effect until the most hapless Lionel Hutz in Reno walks into the District Court and gets it invalidated on 13th Amendment grounds. But before Hutz even makes his case, the United States would, briefly, permit chattel slavery again.
That short temporal lacuna in law makes our entire constitutional framework seem arbitrary, even unfair. It’s a wonder the Constitution is still the law of the land today (insert cynical Lysander Spooner objection here) when it can be so easily dismissed. But that our rule making bodies (mostly) hold off from passing bald-faced unlawful bills speaks well of our what Christopher Caldwell calls “America’s constitutional culture.”
St. Aquinas observed that culture is more important than laws for preserving societal order, and it’s our collective expectation that court rulings be followed that keeps rogue executives and shirking legislators in line. Joe Biden served in Congress for four decades. He’s worked within the White House complex for nearly another. He should know better than to toy with our fragile legal conventions. But his administration is staffed by young progressives eager to toss off the constitutional yoke that stops America from becoming an ever-woke, eyes-pinned-open society.
The CDC locking in the eviction moratorium for another month may not seem like much. But tiny cuts in our greater constitutional understanding add up until the heart’s blood of our republic completely lets out. President Biden is so enthralled with occupying the Oval Office, the pinnacle of his ambition, that he’s paying no mind to the culturally corrosive schemings of his hard-left staffers.
Just because Biden can technically ignore a court ruling doesn’t mean he should. Executive impunity should be nipped in the bud before it grows into more lawlessness. Who to prune then, if our lawmakers are too busy griping and grifting to stop a runaway executive?
The onus falls to citizens to reinforce the law, either by petitioning, publicizing, protestation, or, that last civic resort, voting. I know, I know—not a promising bulwark. But it’s the only one Americans have, until Nextdoor comment quarrels, critical race TikToks, and grand plan fever dreams wholly usurp the Constitution.
What a bummer to think we might have already crossed that point.