Constitutional Crisis: Has the long awaited event finally arrived?

President Biden extends the moratorium on evictions with the full knowledge he has exceeded his Constitutional authority.  As Democrat politicians praise the move along with much of the media, whatever happened to all the concern about democratic norms and unchecked executive power?  This is the exact crisis they warned about happening right before their eyes…

Earlier this year, I wrote that executive orders are the real looming Constitutional Crisis.  In my post, I questioned what would happen if President Biden defied the Supreme Court.  I noted that “the courts are essentially powerless to enforce an order if the President were to defy it.  This leaves two options, the Congress and the Court of Public Opinion. First, Congress can override the order by passing veto proof legislation or they can impeach.  Congress, however, is controlled by Democrats who likely support the order themselves.  Are AOC and Ilhan Omar really going to take a President of their own party to task for violating the courts on an issue they agree with?  I could be wrong, but it seems inconceivable to me that there would be a super majority to override or impeach on this issue.  In my opinion, they would likely let it stand, meaning they would support a President defying a court order.  That’s an actual Constitutional Crisis if ever there was one.  Second, the mainstream media likely supports the policy as well and they are also likely to know that the Democrats won’t fight Biden on the issue.”

Unfortunately for us all and perhaps the future of the republic, something very close to this scenario unfolded last week when President Biden ordered the CDC to extend the moratorium on evictions that expired on July 31.  On Tuesday, the CDC Director Dr. Rochelle Walensky announced the extension, citing the Delta variant as the reason.  “The emergence of the Delta variant has led to a rapid acceleration of community transmission in the United States, putting more Americans at increased risk, especially if they are unvaccinated,” she said in a statement. “This moratorium is the right thing to do to keep people in their homes and out of congregate settings where COVID-19 spreads.”  Oddly, the announcement was made after the CDC itself rebuffed the same request just two days earlier, citing a lack of legal authority.  Press Secretary Jen Psaki explained last Monday that they have been “been unable to find legal authority for a new, targeted eviction moratorium. Our team is redoubling efforts to identify all available legal authorities to provide necessary protections.”

The concern about lack of legal authority stems from a Supreme Court ruling on the matter in June.  At the time, the Court ruled 5-4 to allow the ban on evictions to continue until July 31, even though a lower court had concluded the CDC exceeded its authority.  Justice Brett Kavanaugh cast the deciding vote and issued a concurring opinion.  He stated specifically that he was upholding the program only because it ended the following month and “those few weeks will allow for additional and more orderly distribution” of funds Congress had already appropriated to reimburse landlords for missed rent.  Otherwise, the Justice wrote, “I agree with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium.”  To ensure there was no mistaking his meaning, Justice Kavanaugh added, “In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”

Prior to the ruling, the Biden Administration had said the moratorium wouldn’t be further extended and that July was “one final month” to help stabilize the market.  The moratorium itself was first implemented last September under President Trump, and it was extended to June 30 in March under President Biden. Many believed the moratorium would expire until members from the progressive wing of the party, colloquially known as the Squad, mounted protests on Capitol Hill.  Representative Cori Bosh told the Associated Press, “I know what it’s like to be evicted and have to live out of my car with my two babies.  As long as I am a sitting U.S. congressperson, I will not keep my mouth shut about it.” She tweeted from the Capitol steps during the protests, “Good morning. The eviction moratorium expires tonight at midnight. We could have extended it yesterday, but some Democrats went on vacation instead.  We slept at the Capitol last night to ask them to come back and do their jobs.  Today’s their last chance. We’re still here.”

Ultimately, Representative Bush insisted that Democrats “failed to meet the moment.”  Biden, apparently, decided to meet the moment on his own and unilaterally extend the moratorium, even as he himself acknowledged the administration was on shaky legal ground.  “The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster,” he said, adding that he was able to find “several key scholars who think that it may and it’s worth the effort.”  Asked point blank about whether or not extending the moratorium was Constitutional, however, he replied, “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.”  In addition, he told reporters, “Any call for [a] moratorium based on the Supreme Court’s recent decision is likely to face obstacles.  I’ve indicated to the CDC, I’d like them to look at other alternatives [other] than the one that is in existence, which the court has declared they’re not going to allow to continue.” 

In short, President Biden clearly knows he has exceeded his Constitutional authority, even as he has taken an oath to protect it.  To be precise, the Supreme Court didn’t actually strike down the moratorium; it was upheld 5-4.  A concurring opinion is not binding, but it is certainly close given that Justice Kavanaugh clearly indicated he would rule against the moratorium if the case came up again, meaning there would be a 5-4 majority to eliminate it.  Of course, it is not uncommon, especially in recent years, to see Presidents of both parties push the bounds of Executive Power to the limit, skirting Constitutional issues until the Supreme Court officially weighs in.  We saw this under Obama with his Executive Orders on DACA and deportations, and under Trump on immigration and building the border wall.  However, neither Trump nor Obama actually issued an order contrary to an official opinion, even a concurring one, from the Supreme Court.

The question then becomes: How did Congress and the mainstream media react? What happened to endless worry about authoritarianism and democratic norms? Unfortunately, with a few exceptions, neither made any attempt to keep Biden in his Constitutional lane.  Democrat Congressional leaders Chuck Schumer and Nancy Pelosi both praised the decision and Representative Bush’s role in pushing Biden to exceed his authority.  Senator Schumer gushed that “She made yesterday’s announcement possible,” saying “You did this.”  House Speaker Nancy Pelosi complimented her “for her power action to keep people in their homes.”  Senator Elizabeth Warren concurred, “She’s a woman who stood up and said ‘I’m not moving.’  She testified from personal experience…and that was enough to capture the attention of a lot people.”  Not one of them, to my knowledge, expressed any concern that President Biden, by his own admission, exceeded his Constitutional authority.

Likewise, much of the mainstream media was equally effusive, depicting the President as a hero for the little guy, facing off against a no-good Congress and Supreme Court, and doing what’s right no matter what.  CNN’s resident propagandist, Stephen Collinson, described it this way, “Even President Joe Biden doesn’t know whether his new federal eviction moratorium for renters is legal and sustainable. But crushing humanitarian and political pressure left him no choice but to take a chance on an emergency move.”  Similar to how he described Biden’s entire Presidency as “an intriguing political trick,” Mr. Collinson said the move was a “classic Washington fudge,” “in which presidents, especially Democrats, have improvised with executive power to shield constituencies from consequences of a malfunctioning political system.”  Of course that “Biden averted a humanitarian crisis is not in doubt,” citing interviews with renters who claim Biden is “our precious president.”  Ultimately, Mr. Collinson concludes that, “Politically, the spectacle of potentially millions of Americans being turned out of their homes would be an impossible one for any White House, let alone a Democratic administration built on the principle of using government power to alleviate the plight of poorer Americans. So, Biden had to do something.”

Note the obvious subtext:  Mr. Collinson doesn’t care in the least whether that something was legal.  He supports the end, therefore the means are justified.  Mr. Collinson was not alone, either.  The progressive website Vox, for example, opted to blame the Supreme Court for not allowing a lawless action to continue in the first place, meaning they no longer believe in anything resembling separation of powers or Constitutional safeguards.  Ian Millhiser declares that “the Supreme Court bears primary responsibility for the end of the eviction moratorium,” or rather the “five Republican appointees on the Supreme Court” to be precise.  In fact, the dastardly Supreme Court “is dismantling much of the Biden administration’s ability to govern.”  Mr. Millhiser believes the decision on the moratorium “should be understood as part of this broader effort to disempower federal agencies” and the “reason why the Biden administration cannot extend the moratorium by invoking the CDC’s statutory authority is that the Court was quite clear that it would not permit such an extension.”  In other words, no agency, when run by Democrats, is required to conform to the actual law.  He continues to make this entirely clear by saying, “Rank-and-file Democrats do not understand the threat posed by the Supreme Court,” framing the Constitution itself as a threat.

To their credit, there were a few dissenting voices even in mainstream outlets.  The Washington Post editorial board, for example, said, “It is not the Biden administration’s fault that states have been slow to get federal rental aid to needy Americans. But the administration’s only reasonable options were to push states to get their acts together and to request that Congress give the CDC the authority it needed to reimpose an eviction ban.”  They also correctly noted, “If the Trump administration had ignored a direct warning from the Supreme Court, Democrats would rightfully line up to condemn the president. Mr. Biden does not get a pass on the rule of law because his heart is in the right place.”  The Hill and USA Today also ran editorials expressing concerns about a President intentionally exceeding their legal authority.

At the same time, I think my original point stands:  There is nowhere near the Congressional or public pressure required to reverse the decision and ensure Biden doesn’t exceed his authority in the future.  Democrats in Congress were almost unanimous in their praise and the media mixed enough that it seems unlikely any consequences will occur. Perhaps even worse, the justifications provided by President Biden’s enablers are much broader in their scope than merely this particular situation.  Mr. Collinson, Mr. Millhiser, and others aren’t simply saying this should be seen as a one off as Justice Kavanagh did. Their argument isn’t that Biden exceeded his authority, but only temporarily because the funds are already appropriated and the pressure on both renters and landlords will be relieved soon. 

Instead, they are making a much broader argument for a Democrat President to wield unchecked executive power.  In their opinion, a President can act solely because Congress or the Courts choose not to.  He “had no choice” and “had to do something,” plus the Courts themselves are a threat and clearly can’t be trusted. Of course, this isn’t the way any of this is supposed to work.  The Constitution proscribes powers to the different branches of government, and each branch is only supposed to exercise power in their sphere.  There is no clause for a President to act, say to declare war or rewrite the tax code, because Congress chooses not to, nor is there any provision for the President or Congress to defy the courts, but this is exactly what Biden’s enablers are championing.  The end result is an Executive Branch unchecked by anything or anyone, except the support of his political base.  Once upon a time less than a year ago, such a thing was considered terrifying.  Now, suddenly to many, it’s exactly what we need.

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