Biden’s eviction comments create a constitutional pickle

At first, the White House insisted it did not have legal authority to extend a national eviction moratorium. After all, the Supreme Court had ruled only Congress could do so. But then Rep. Cori Bush camped out on the steps of the US Capitol instead of heading home to Missouri, progressives raised a national uproar, and millions of Americans behind in their rent gained new hope.

In a remarkable reversal Tuesday, less than 24 hours after White House adviser Gene Sperling stood in the briefing room repeatedly telling reporters exactly why the administration saw no way to legally extend the moratorium, the Centers for Disease Control announced a ban on evictions till early October.

The new ban looks a lot like the old ban, and even President Biden said the day it was announced that ‘the bulk’ of scholars ‘say it is not likely to pass constitutional muster’.

Was it the view of the White House that this surprising step was unconstitutional but necessary? ‘I didn’t say that,’ press secretary Jen Psaki told me at Wednesday’s briefing. Biden wouldn’t have moved forward, she said in reply to a follow-up query, ‘if he was not comfortable with the legal justification’. I raised that question again on Thursday with the president himself. And while he said he believes the new ban is in line with the law of the land, he could not answer for the Supreme Court. At very least, Biden added, the ban was necessary to buy renters some time.

‘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,’ he said during a White House briefing.

It was the latest in a showdown between a president who fancies himself something of a second FDR and a Supreme Court controlled by a conservative majority. After taking a lap around the White House driveway in a brand new all-electric Jeep, Biden stepped out from behind the wheel and tried to explain ‘one last time why I did what I did’.

The President said he was frustrated that $45 billion in pandemic relief meant to help leasers and landlords was ‘sitting in the state treasuries right now’. The money had already been congressionally appropriated ‘to keep renters in their homes’ and to help rental companies ‘keep their business going’. Then, the high court made its ruling in June: ‘The court ruled by — and made it very clear — the Supreme Court said, “You can’t do that. You don’t have the authority to do that.”’

So, Biden started working the phones, calling legal scholars outside the White House counsel’s office, and they told him ‘“you have the authority to do it but, in this court, who knows?”’ the President told RealClearPolitics. He won’t have to wait too long for an answer. The new ban runs through October 3. The nation’s highest court returns from summer recess the very next day.

But the outcome may already be clear. ‘In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July,’ Supreme Court Justice Brett Kavanaugh wrote in June, after casting the deciding vote that allowed the earlier eviction ban to remain only until the end of July.

Writing in Reason magazine, Georgetown University law professor Ilya Somin predicted that the new order was dead in the water. ‘The new moratorium is an only slightly scaled down version of the old. As such, it has virtually all the same flaws and legal vulnerabilities. Pretty much every legal argument raised against the original moratorium — and accepted in numerous judicial rulings against it — also applies to the new one. Meet the new moratorium, same as the old moratorium!’

Not so, said Laurence Tribe, the Harvard law professor whom the White House sought out for legal advice. ‘I think the odds are greater this time around,’ he told Politico, noting that the new ban might survive Kavanaugh and his conservative colleagues because ‘the initial moratorium was nationwide and not targeted in health-specific terms that are of a sort that fit the mandate of the CDC.’

Republicans are already arguing that Biden violated the oath he swore to defend and uphold the Constitution. Senate Minority Leader Mitch McConnell summed up that argument when blasting the administration in a floor speech for using ‘this terrible but temporary pandemic to be their Trojan horse for permanent socialism’.

Sen. Mike Lee opposes the new ban, but the Utah Republican and former Supreme Court litigator told me that ‘if I were advising him, I would advise him to rescind what he said previously’. And in a hurry.

‘An ordinary litigant in front of a court would not want to have said things like that,’ Lee said of Biden’s remarks in the White House driveway, ‘because when it becomes apparent that someone’s looking to play the judicial system in order to achieve a short-term benefit and delay the moment when what they’re doing is deemed unlawful, the courts tend not to look very favorably on that.’

And Lee likened the answer that Biden gave to a litigant saying, ‘I know what I’m doing is super shady,’ and Lee argued that the comment reflects ‘a certain amount of disrespect towards the constitutional system’. He predicted that any judge might express ‘profound displeasure with that type of move’.

Some Republicans are so displeased with Biden they are talking about removing him from office. Rep. Chip Roy of Texas said the president was ‘purposefully’ and ‘willfully’ acting ‘contrary to the Constitution’. He called it ‘an impeachment two-fer’. Lee blunted that impulse by noting that political arithmetic — namely, Democrats’ control of both chambers of Congress ‘makes the question essentially moot, at least on something like this’.

That doesn’t make the offense any less serious in his eyes. ‘The Enlightenment principles that inform the Constitution themselves teach us that the government can’t deny property owners of their property rights without due process of law, and that’s what we’re facing here,’ Lee said.

His advice? ‘I think the President needs to take a mulligan on this one.’

This article was originally published on RealClearPolitics.