Biden Illegally Extends Eviction Moratorium
The President is in open defiance of the Supreme Court.
CNN White House reporter Stephen Collinson gets to the heart of the matter with “Biden shows he’s ready to make drastic moves in Covid-19 fight — even if he’s not sure they’re legal.”
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.
The new US Centers for Disease Control and Prevention scheme was announced after the White House, hampered by a Supreme Court ruling and Congress’ failure to act, had repeatedly argued it had no constitutional authority to extend the moratorium. Biden himself said on Tuesday that the new moratorium may not be constitutional, and is essentially an attempt to buy time to get backlogged funding out of state coffers and into the pockets of renters and landlords alike.
The conundrum threatened to force millions of Americans who lost incomes during the pandemic out of their homes in an appalling twist to what has already been an agonizing year. The problem was that the moratorium expired on July 31 at a moment when much of the more than $40 billion in funds already provided by Congress to pay landlords for back rent for tenants is still yet to be handed out by states and local authorities.
To head off mass evictions, the White House came up with a classic Washington fudge — not unfamiliar in an era of Capitol Hill gridlock — in which presidents, especially Democrats, have improvised with executive power to shield constituencies from consequences of a malfunctioning political system.
Collinson’s opener is actually far too generous: Biden’s legal team not only told him that this is illegal it told the public that. The Supreme Court already ruled that it was beyond the CDC’s authority but, curiously in my view, allowed it to stand, anyway, on the grounds that the moratorium was about to expire and that abrupt intervention would have injected too much chaos into the system. That’s good public policy but not how the Constitution is supposed to work.
Regardless, Biden is doing his best Andrew Jackson impression here: Justice Kavanaugh has rendered his decision, now let him enforce it:
While the public health argument is sound, it is not clear whether this formula will get around a ruling by Supreme Court Justice Brett Kavanaugh that stipulated that the original moratorium could only be extended if Congress gave the CDC “clear and specific” authorization to do so.
At first sight, this new CDC move appears to have ignored that requirement with a semantic argument. Hastily cobbled together and legally questionable, the plan appears highly vulnerable to new court challenges, meaning that the new moratorium — covering 90% of renters — may only be a stopgap solution.
The President told reporters on Tuesday that he had sought advice from constitutional scholars and still didn’t have a complete picture about the chances of the new moratorium passing muster in the courts.”I can’t tell you. I don’t know. There are a few scholars who say it will and others who say it’s not likely to,” the President said.”But at a minimum, by the time it gets litigated, it will probably give some additional time while we’re getting that $45 billion out to people who are in fact behind in the rent and don’t have the money.”
Considering that the move is likely to be politically popular—there are more tenants than landlords and the latter are likely disproportionately Republican, anyway—and that a Democratic Congress is certainly not going to impeach Biden for the crime of doing something unconstitutional that they otherwise like, there’s likely no price to be paid here. But, certainly, the “norms” that everyone was talking about during the previous administration are being further strained with this move.
Beyond that, it’s worth noting that the reason Biden is ignoring the Supreme Court here is not frustration over a likely Republican filibuster. An extension would not pass the Senate on a straight-up-or-down vote. So, really, he’s circumventing both the courts and the legislative process here with this illegal action.
But, again, there’s no obvious penalty for that.
If a court blocks the move, the White House can at least argue the President took bold action to protect needy Americans and can blame Republicans ahead of midterm elections for refusing to cooperate to stop citizens being kicked onto the streets.
Given Democrats’ frustration with a Republican-dominated Supreme Court—exacerbated by reasonable belief that the process by which that domination was achieved was illegitimate—this is unlikely to be the last time Biden or other Democratic administration snub their nose at the courts.
UPDATE: For a contrary take, see Mark Tushman (“The Eviction Moratorium and Constitutional Norms“):
What could/should President Biden do/have done under these circumstances? He’s been given legal advice that a course of action that is politically attractive (and that, for all we know, he would love to take) doesn’t have a defensible legal grounding. And, as a matter of prediction – “what the courts will do in fact” – we should be quite confident that were he or the CDC to rely on the CDC’s prior, aggressive legal interpretation of its authority, an injunction would issue in short order. And, similarly as a matter of prediction, we can be reasonably confident that, though it might take a bit more time, extending the moratorium by relying on creative or aggressive interpretations of other statutes or of the President’s inherent power would also be enjoined.
Still, at the moment there’s no injunction in place. And, indeed, there’s not even an authoritative holding by the Supreme Court asserting that the CDC lacks statutory authority to impose the moratorium. As a matter of constitutional/political morality/law, what should we say about a decision extending the moratorium in these circumstances?
One view is a strong version of Holmes’s “bad person” theory of law’s content. All that matters are the sanctions the courts will attach to the course of action. And, in these circumstances, no sanctions will attach to extending the moratorium: without an injunction in place, no one is “defying” the courts by acting in a manner inconsistent with firmly grounded predictions about what the courts will say about the law when they get a chance. And, acting on this view, extending the moratorium would be (from the President’s perspective) morally valuable because it would give some renters a few more weeks of security in their housing.
There’s more but that’s the gist. But Josh Blackmun (“What Happened to the Legality of the CDC Eviction Moratorium Between Saturday and Tuesday?“) disagrees:
[Last] evening, the CDC issued a 19-page order that extends the eviction moratorium in certain high-transmission areas. If I had to guess, this order had been vetted, but the politicos were unwilling to release it for fear of a Supreme Court rebuke. But when the pressure mounted, President Biden caved, and followed Tushnet’s strategy. He decided to call Justice Kavanuagh’s bluff. Now, it will be the evil Supreme Court, and not the President who has to take the political hit.
In a follow-up post (“Presidential Maladministration in the Biden Administration“) he adds:
Yesterday, I gave President Biden some credit: he was willing to direct his administration to adopt a popular policy the courts would probably stop. After all, there was no binding injunction, so nothing stopped Biden from doing so. He took a page out of Orval Faubus’s playbook.
My praise was premature. Shortly before the CDC announced the measure, President Biden shirked personal responsibility for the order, which he acknowledged was probably unlawful.
[…]
In a few words, Biden shined a bright light on how his executive branch functions. The buck does not stop with him. And he won’t even take accountability when his CDC takes a popular, but legally dubious executive action. He would not tell DOJ or CDC what to say. They work for him! We aren’t talking about some prosecutorial issue that requires independence. This question concerns the duty of faithful execution. He has a constitutional obligation to make sure his subordinates comply with the law. But Biden simply stood on the sidelines.
[…]
In the past, I wrote that courts should be extra skeptical when a new administration reverses the position of a prior administration, and discovers a new source of statutory authority. Here, the Biden Administration reversed itself! On Saturday, the executive branch said it lacked switched sides, released a 19-page opinion (that was no doubt vetted by OLC), and found that authority! And the President acknowledges it will likely get stopped in court, but said the litigation will buy some time to distribute funds. And he’s daring the Supreme Court to leave the policy in place long enough so all of the funds can be distributed. This is a direct barb at Justice Kavanaugh.
Litigants should quote President Biden in every pleading, like they did with President Trump. Not even the chief executive thinks this measure is lawful.
I also commend Ilya Somin‘s “The CDC’s New Eviction Moratorium Has Virtually all the Same Flaws as the Old” and “A Takings Clause Lawsuit Against the CDC Eviction Moratorium,” which take on other angles on the matter.
Ho-hum, in contrast to TFG, who NEVER never did anything illegal.
Yes, I get it, but pushing the envelope to help people seems different from hiring one’s relatives and having them operate outside the official structures to make more money for one’s family.
I’d rather have the president be scrupulous about the law, but I’d also rather have two functioning political parties and no pandemic. So I guess I’m an idealist.
This is like stealing food to feed a starving family; technically wrong but morally correct.
A good example that the root problem is simply that Congress is broken. You get an Imperial Presidency and activist judiciary when the most important branch of government–the legislative–has all but stopped passing legislation. It turns out gridlock in Congress doesn’t stop the world from turning, and while Congress (particularly one party these days) thinks they have the luxury of being obstructionist do-nothings with no responsibility, others have to and will step into the breach. I mean, the administration flat out stated for the last few weeks that they didn’t have the authority to extend it, but Congress did nothing. Meaning Biden’s choices were “try something and let the courts (slowly) sort it out”, or “economic hardship that could derail the whole recovery.” I’m not sure Congress even TRIED to sort it out.
My reaction to the headline was “Good.”
Maybe Ds are learning to play hardball one baby step at a time. Coupled with Biden telling DeUseless and Abbott to get out of the way, maybe we’re seeing a theme of GOPs can play their silly games but we’re going to ignore them and do what needs to be done.
Lincoln famously ignored habeus corpus. It didn’t mean he had lost respect for the law, it meant he was a good lawyer and knew what he could and couldn’t do. Being a pragmatist he thought keeping Maryland in the Union by stalling on releasing a few people from jail was worth it. Do you disagree?
@Cheryl Rofer: I see you’re moving from Balloon Juice to LGM. Hope that’s comfortable for you. I hope this comment indicates you’ll still going to play a little in this sandbox. Although it’s the internet, facts and common sense are always welcome.
Seems a little less alarming than the headline would suggest.
Overall, is this better or worse than states passing laws banning abortion and asking the Supreme Court to revisit Roe v. Wade?
@Cheryl Rofer:
Note that I routinely called out TFG for doing illegal things. It is my position that the Chief Executive should follow the law.
@Jon:
Most ethicists would disagree with you. (For the record, my position on this is that we should be paying people’s rents, not foisting a massive unfunded mandate on landlords.)
@Gustopher:
Different, I think.
Roe is made-up Constitutional Law and, indeed, the basic rationale behind it has been abandoned, with Webster and Casey being the new baseline. Further, I don’t think state legislatures have the same duty to respect SCOTUS rulings as POTUS. Their relationship to the Constitution is simply different. Biden is the Chief Executive and has the primary responsibility for enforcing the law of the land. And the authority he’s relying on here is entirely extraconstitutional, delegated from Congress to the Executive through the administrative function.
@gVOR08: Thanks. Yes, I have Outside the Beltway on my feedly list so that I can come over here from time to time.
@James Joyner: Luckily I’m not an ethicist :-). More importantly, ethics and morality are not the same thing.
@Jon:
This is one of those sympathy vs empathy things where i tried to learn the distinction a few times and it just didn’t take.
Good for Biden. This is illegal only if you’re a lawyer.
Considering how much back-rent is owed (1 billion in NYC alone) due to COVID focusing on evictions is just dumb Fox-news anti-freeloading nonsense. The people who need help–i.e. the person who owns one small building and has three tenants–are already in trouble. Both parties should have been on this last spring, when it was obvious that this was going to be an issue.
@James Joyner: Yes, as I wrote that, I realized that it wasn’t entirely fair to you.
The biggest problem is that one political party is pro-virus and dedicated to making the country fail for what they perceive as electoral advantage. If that were different, the President could be more scrupulous about the letter of the law.
@Teve: My working definition of ethics is that it is the framework by which we determine how to apply morality to a given situation. There are things that can be morally correct but ethically wrong, such as my ‘stealing to feed your family’ example up top. Stealing is immoral, but allowing somebody to starve is more immoral.
@gVOR08:
I think the Democrats sensed a disturbance in the force because Biden’s White House is finally using the same rule book that the GOP uses to play the game of politics.
At first folks thought since Biden has been a Politician forever and has relationships with many folks with an R in front of their name that he could work out compromises and get shit done, but in some ways the GOP is slamming Biden as being an even worse President than Obama, which is amazing.
Also, look at TX FL, MO, and other states where their Legislators just declare whatever they want to be the law and dare anyone to push back. Also, the Supreme Court ruled that Abortion was legal what 40-50+ years ago, the GOP says hells to the no we are going to spend the next 50+ years dragging as many cases as we can in front of the Supremes to get them to overturn Roe Vs Wade, and many states challenge the Court’s authority by creating draconian Abortion laws that only get watered down in impact when both Ds and Rs blanch at how harsh and wrong the newly declared law is. The Supremes say Obamacare is legal, the GOP says hells to the no and will now spend the next 50+ years trying to occupy the Courts time to overturn the law. I could go on and on.
If in the eyes of the modern GOP Biden is the worst President ever and everything he wants to do or enacts will need to be overturned than Biden should just go wild with abandon and declare what he wants done under his watch at any time of the day and just let the GOP have to do the work to overcome what they do not like coming out of Biden’s White House.
However, I bet the GOP might discover some of their constituents like what Biden is doing and it will be easier said than done to over turn every single thing that Biden enacts (however, I can still picture a GOP legislator saying they need to dismantle every stem and branch of Biden’s legacy).
If the GOP is expected to take back the House and Senate than why make life easy for them when they get back into power, throw a million things at the GOP that they will have to work to dismantle, so it forces them to be constantly busy when they are in power.
The way I look at it is the Republican Supreme Court wanted it to end but didn’t want Republican fingerprints on the decision. So they did a hummina-hummina, waved their hands and said, “Poof, the Dems get the blame for enacting Republican policies!” Biden has simply called their bluff. If Republicans want it to end, they need to do so overtly.
@James Joyner:
I absolutely agree. Sadly we’re failing to do that so this is (perhaps) the next least bad option.
@Teve:
The cynical distinction is that ethics is what you do when nobody is watching, and morality are the rules you obey when God is watching.
SCOTUS hasn’t ruled that the federal eviction moratorium is illegal. So far, it has only signaled in a ruling on process that it would find against the moratorium when ruling on the merits. In the meantime, the ruling in support of the moratorium by a lower court still stands.
Strictly speaking, what Biden is doing is therefore not illegal, as SCOTUS still has to rule on the merits.
More broadly speaking, however, what Biden is doing would be very problematical in any decent democracy: the executive has now opted to defy the judiciary (specifically: SCOTUS) for as long as it can get away with it.
Because of McConnell’s court packing shenanigans, I can’t get too worked up about it, though.
Especially since, looking at the actual legal merits (as opposed to what a hopelessly politicized 6-3 SCOTUS would find), the law is as likely as not on Biden’s side.
After all, the moratorium was originally upheld by a lower court.
It was the GOP that started killing off norms. I suppose they don’t like it when a Democrat uses that against them.
I share some concerns with James, but at least Biden is doing this for a noble purpose rather than mere self-aggrandizement.
@MarkedMan:
This. If the worst happened and tens of thousands were suddenly homeless because the GOP, you better believed they’d be voted out everywhere they could. See, the prevailing “logic” is renter=city folk=likely liberal/”taker” so they are fine with punishing them in favor of the “maker” business class. That’s absolutely not true – Republicans voters are renters too and in poorer red or rural areas are the most likely victims. Renting that trailer in the park? Evicted! Renting a cheap apartment or house in a small town with no jobs? Evicted! Living in a red state where it’s likely less there is rent control or government restrictions on the process? Oh you better believe you’re evicted!
FOX has been framing this subtly as lazy, greedy liberals in cities taking advantage of good ole’ conservative businesses folk to not pay their bills and the damage would likely be limited to “urban centers”. Yeah right. It’s gonna cut a swath across Red America where there’s no social supports and nowhere to go. Even in red parts of blue states, there won’t be enough money and services to go around. Landlords aren’t going to magically find mass replacement renters either so they’re out money too – everybody loses if the GOP gets their way. Better to just punt and whine when the Dems step up to fix the mess like always…..
Blatant rules breaking *is* the new norm now and has been over a decade and half. The GOP has been fine with it because they were the ones smashing everything and reaping the rewards. We warned them that it can go both ways once the precedent was set but nooo, liberals are too goody two-shoes to go for it.
Now? Now they’re upset they’re getting a small fraction of it. The bully isn’t supposed to get punched, only the victim. Yet if you normalize punching as a way to interact and the teachers do nothing, everyone someone’s gonna come along and beat up the bully. D’em’s the rules now, after all…
Really? I find Biden’s response incredibly alarming. He’s just casually admitting that the highly debatable constitutionality of the policy is more or less irrelevant to him since he can run out the clock with litigation. Yes, I know both parties increasingly employ that strategy, but the sheer casualness of his admission – you can practically hear him shrug at the idea that constitutionality might be a relevant and important up front consideration – shows just how far we’ve strayed from the path of good government at this point.
@R. Dave: Law should serve the people, not people the law. I can’t think of a single definition of ‘good government’ that includes kicking people out of their homes during a pandemic for reasons out of their control rather than helping them.
Source
@Jon: Really? You can’t think of a single definition of good government that involves the rule of law, procedural fairness, etc.?
Source
@R. Dave: I think you’re missing my point. I’m not saying rule of law does not matter in any circumstance. I’m saying that when adhering to the rule of law conflicts with what is morally correct, then it becomes correct to bypass it. And, if doing what is morally correct involves having to suffer consequences *from* the rule of law, you suffer those consequences gladly.
@R. Dave:
FTFY
Don’t blame Biden, blame McConnell. It’s McConnell c.s. who turned SCOTUS into something little better than a kangaroo court.
Biden just recognizes what he’s up against.
@Jon: An application of a loosely understood categorical imperative could ask which society you want to live in a society where everyone must permit people to steal to feed their families (or stiff the landlord, in the current issue) or where everyone must allow starvation (or allow homelessness, in the current issue).
Which is the Hobson’s Choice that the side argument involving comparative moralities and the real argument about throwing people out of their homes during a pandemic is revealing. Until “WE, THE
SHPEEPUL” decide how to do better at choosing who goes into elective government, we will always be choosing between good policy and how the Constitution is supposed to work. “A republic, if you can keep it.” Can we?@Just nutha ignint cracker:
What what we all seem to forget (or at least I did) is that Congress allocated more than $40 billion for rent relief, and another $10 billion for a moratorium on mortgage foreclosures to provide similar relief to the landlords themselves in paying their *own* bills. It was the states, red and blue, that fell down in allocating those funds such that it ended up ‘stiff[ing] the landlord.’ There was no intent on stiffing anybody, rather it was our all-too-common terrible implementation of the relief that ended up doing so.
h/t to Yastreblyansky for reminding me of that.
Sometimes a POTUS is wise to not hide behind the law when plain common sense is called for in special circumstances. However, if they do it, I would prefer they do it like Jackson and Lincoln did, plainly state they are doing so. I believe Lincoln once said to the effect: “I will accept whatever punishment I am given, but I must do this” on one of his many unconstitutional acts. Jackson ‘s admission the Supreme court could not enforce their ruling was an admission of breaking the law too.
This is opposed to the ordering of legal council to make up BS and then pretending it’s legal. That undermines the foundation.
@Jon:
Now that is a right dangerous argument considering that a substantial segment of the population wanted to throw out the law to overturn an election because they believed they had the morally correct obligation to “save” the country.
Biden is saying that the court didn’t rule on the merits. They didn’t. They implied how they might rule, but they didn’t rule. Biden says that his administration won’t kick people to the streets based on an implication.
Is he playing politics with the law? If he is, it is a tit for tat on what this Republican Supreme Court did itself. And he is erring on the side of people not getting thrown to the curb.
For decades now the Republicans have put partisans on the court at every opportunity. The court is now partisan, full stop. Pretending they are not because it would be better if they weren’t is denialism, not wisdom.
@James Joyner: “Roe is made-up Constitutional Law”
No such thing.
SCOTUS ruled this clearly unconstitutional for the bureaucrats to do. Joe Biden refused to make it a presidential, i.e., Executive, action and himself said it was unconstitutional. Certainly a nice set up to deny the bureaucrats “qualified immunity” and for the SCOTUS to have an opportunity to very, very narrowly limit the judge made rule. And Chief Justice Roberts will be motivated to do something to retain some legitimacy for the Court by pushing back hard.
Of course, conspiratorially, we can envision a lot of rental units disappearing from the market and a lot of insurance fires. At a minimum, quite large rent hikes to adjust for this new risk in being a landlord. And just as Blackrock and other hedge funds have been buying up middle class housing at above market prices….Perhaps anticipating a housing price rise as renters have no choice but to seek private ownership?
@Scott: I get what you’re saying, but I’m not sure I agree that a President (potentially) violating the law to keep people in their homes is the equivalent of trying to overthrow the government, irrespective of either being accurately morally grounded.
Also, I fully cop to being imprecise with my phrasing here, and apologize for that. My statements above were intended in the context of this overall discussion related to eviction relief, not as an argument to always do what you personally feel is morally correct regardless of anything else.
@Cheryl Rofer: Hey Cheryl Rofer,
Congratulations on your new gig at LGM. You’re a great addition to a great site! I hope we won’t see less of you here.
@Jon: I hear you and quite frankly agree somewhat.
What gets me is how Biden allowed this monkey to be put on his back. He should have said: ” Hey, we sent $45B to your governors. Go call them and ask what the plan is.” But he took it on.
There needs to be some more hardball here. If DeSantis threatens to take money from schools over mask nonsense, the Feds can withhold Title I money, etc in return. And still hold the states responsibility for the law even without funding. I know the counter argument which puts Ds at a disadvantage: “Your just hurting children through no fault of their own”. But nonetheless….
@Scott:
Agreed. This was a profoundly unnecessary screw-up. They knew when the moratorium was set to expire, they knew the vast majority of the money had yet to be disbursed, and yet they still sat on their hands. Perhaps the most pointless use of “the stranger” ever.
” He should have said: ” Hey, we sent $45B to your governors. Go call them and ask what the plan is.” But he took it on.”
This assumes a frictionless market with uniform Homo Economicus’ of uniform density – in other words, that a message will trump reality.
I have a few friends who ended up landlords for various reasons…one inherited a parent’s property and turned it into a rental rather than selling, and another had invested so much in a house when she got transferred to another state for work that it made more sense for her to rent the house than to sell it.
Neither has been hit by this moratorium on rents yet… but they are watching it closely. (BTW, both are ardent Democrats.)
I’m deeply sympathetic to those unable to pay their bills and yet still understand enough to know that not every landlord is sitting on a pile of cash and able to wait this out. At some point, this becomes a taking by the government if there isn’t equal relief for the landlords.
@Barry: Sorry, that reality will trump a message.
@JKB:
WOW! You make it sound sooooooooooooooo easy. It’s almost as if you’ve never actually rented (or owned for that matter) a home of your own.
Who knows what possessed the Trump Administration to issue this order in the first place? It was a pretty obvious dodge to implement a welfare measure under the guise of a public health order. It’s hard to get too worked up because Biden has also played fast and loose with the law to keep the moratorium in place.
The appropriate welfare response, needless to say, had already been made by Congress when it approved more than $30 billion in rent relief payments. But more than 90% of this remains undistributed, for reasons that have yet to be explained but which almost certainly involve bureaucratic inertia, incompetence and/or under-resourcing at state level. America seems to have reached a stage where there is often a huge disconnect between what Washington approves in theory and what ordinary Americans experience in practice. The machinery of government is broken.
@James Joyner:
Absolutely. Many landlords are themselves middle class working people using the rent to pay off the mortgage, and then hoping to convert the house to their retirement funds. Proper housing is a basic human right, and one that should be supplied by the government, not pushed onto landlords (most of which are far poorer than the elected people who pushed the responsibility onto them).
Its similar to bailing out the banks directly instead of taking the same money and giving it to the home-owners so they could pay off the banks (and keep their homes). Paying the renters/poor home owners directly leads to much better outcomes, and is much fairer.
What on earth is this trainwreck of a clause, James? And under what theory are you differentiating Roe from Casey which you imply is good law?
And what legal theory would have Roe as “made-up Constitutional Law” and therefore something we don’t have to follow but the opinion in the instant case is not “made-up” and therefore binding?
@SKI:
Casey or Webster (it’s been a long time, so I get the two mixed up) abandoned the trimester standard the Roe court made up out of whole cloth for a much more defensible fetal viability model.
I don’t think Roe and its successors are non-binding law, merely that the Court literally invented a right to abortion out of the previously-invented right to privacy. I distinguish that from the present case, which was merely statutory interpretation and pretty clearly reasonable. That the moratorium on evictions was about public health (containing the spread of the disease) rather than simple human decency (it’s unconscionable to render people homeless because they’ve lost their means of support during a pandemic) was an obvious fig leaf.
I think there’s a difference between “I expect SCOTUS to rule against this” and “SCOTUS has ruled against it, and I’m doing it anyway”. We are in the former case. I’m not clear this is best described as “not following the law”. Maybe it’s better described as “exploiting the wiggle room”. Wiggle room which was created by the previous SCOTUS opinion, no less.
How is this even Legal / Constitutional ?!
But when did that question ever stop the Left ?