DANIEL VAUGHAN: Biden’s eviction moratorium is unconstitutional and he doesn’t care

It’s very strange to consider when the Biden administration decides to act and when it doesn’t. Nothing makes sense.

On the one hand, the Biden administration has sat idly by while the Centers for Disease Control (CDC) nuked public trust in the Johnson & Johnson vaccine. Biden did nothing while the CDC undermined public confidence with all the flip-flops on masking. If we need bureaucratic red tape removed for any creative solution, the Biden administration is nowhere to be found.

But on the eviction moratorium? That’s another story. On the eviction moratorium, after the president and Congress forgot even to address evictions as an issue in the pandemic, suddenly the CDC showed up with an emergency extension of the moratorium, conveniently covering the time Congress was out of session.

The irony of all ironies here is that Biden and White House legal staff didn’t believe they had the power to do such a thing just a few days ago. In fact, it wasn’t just that they didn’t have the ability, but that taking the very steps they took with the CDC would violate the Constitution. Yet, here we are, with a new moratorium on evictions from the CDC, doing the very thing everyone doubted was legal.

The Biden administration of a few days ago is more correct than the current one saying they can do this moratorium. Justice Brett Kavanaugh said in a decision related to the old moratorium, “In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31” of this year.

Four other justices were ready to strike down the CDC’s moratorium on a lack of congressional authorization right then. If Kavanaugh holds that position, it’s 5–4 on that front.

So why are we in this position? Why the sudden change of heart from the Biden administration? The short answer: politics.

Biden and his administration understand that this is not a legal play. They’re expecting the Supreme Court to strike it down. Forbes reported: “Biden said Thursday that even if the courts strike down the new moratorium, the appeals process will ‘keep this going for a while,’ providing temporary relief to renters.”

Congress forgot about the eviction moratorium ending, and lawmakers went to recess without ever considering a solution. So the plan from the Biden administration is to continue the moratorium for as long as politically possible, arguing a losing case in the courts while maintaining as much political ground as possible.

Furthermore, the end goal is to shift the blame from Congress and the White House to the Supreme Court. If the Supreme Court strikes this down, Biden can tell his supporters that he tried to prevent evictions, but those pesky conservative SCOTUS justices thwarted him.

Biden wants to leave the Supreme Court holding the knife for something he knows is Congress’ fault, and his solution is unlawful.

This is one of those clearly unconstitutional acts that erode legal and political norms, more than anything in the Trump administration. The political play goes both ways.

Let’s say a Republican takes office and universally bans abortions at the executive level using the CDC or some other administrative agency, an unconstitutional move. And their reasoning was, “I know it’s unconstitutional, but I’m saving a few lives right now while this gets fought in the courts.” The left would be beside itself.

Jake Tapper and the CNN crew would be rending their garments on live television declaring that act the end of the republic. In reality, that president would only be amplifying the move Biden is making here, ignoring the Constitution to score cheap, meaningless political points. 

Lawsuits have already been filed, and the aim will be to get the Supreme Court to issue an order quickly this time. The court declined last time because the old order from the CDC was running out. But the CDC undermined that rationale. Suppose the court ignores this step by the CDC. In that case, they’re tacitly ignoring the issue at this stage, which is, in itself, a dangerous precedent.

A dangerous precedent sums up the situation the Biden administration has purposely created here. They can’t be found to help make the Johnson & Johnson vaccine more accepted by society. They can’t be bothered to do anything about horrid messaging of the CDC or push through more red tape that’s preventing vaccines from reaching a broader audience.

But they can take unconstitutional action to avoid unpleasant optics, and they can force the CDC to do that. It’s a bizarre stance from a weird administration that’s more known for what isn’t there than what is.

Global pandemics require active leadership, not an empty suit. Focusing on optics over substance or action is the definition of an empty suit.

It’s hard to see anything but a rudderless ship when looking at the White House at the moment, with everyone very focused on the narrative that the president is wearing clothes.