The eviction-moratorium extension was executive overreach, but one perversely invited by members of the legislative branch.
At President Joe Biden’s prompting, the Centers for Disease Control and Prevention (CDC) issued a new eviction moratorium on August 3, legally barring landlords in nearly all U.S. population centers from evicting tenants behind on their rent. This episode reveals a great deal about executive overreach, and calls into question Biden’s commitment to his sworn obligation to take care that the laws are faithfully executed. But just as important is what it reveals about how members of Congress have become willingly derelict in America’s policy-making process.
Freshman Representative Cori Bush (D., Mo.) played a leading role in this saga. When it seemed that the Biden administration was going to allow the eviction moratorium to lapse without replacement, she began what the Wall Street Journal’s Siobhan Hughes described as a “nearly round-the-clock sit-in” on the steps of the U.S. Capitol lasting five days. “I’m an organizer. I’m an activist. That is what I do. I fell back on what I know to do, which was be visible, put your body on the line, use whatever you have,” Bush said. Her efforts, which drew on her own experience of having been evicted, received widespread press coverage. Eventually the Biden administration responded with a new moratorium. Her action has instantly been hailed as an example of how one representative can truly make a difference — including by the Senate majority leader, Senator Chuck Schumer (D., N.Y.) and the speaker of the House, Representative Nancy Pelosi (D., Ca.).
Pelosi’s role in this saga and her take on the situation are especially worth noting. One might think that Pelosi, as the powerful leader of a house of Congress whose ability to set the legislative agenda has proven extremely solid, would want to respond to Bush’s pursuit of an extension to the eviction moratorium by teeing up a bill to push through the House. But it appears that her position, throughout, was that the problem was the White House’s to solve.
In Pelosi’s weekly press conference, when asked whether she would encourage other members to follow Bush’s strategy for forcing change, she had the following to say:
Well, as I said earlier, mobilization on the outside is very important. My concern — and I called her, [I] said, ‘Hydrate’ — you know, being the mom that I am — ‘hydrate.’
And our disagreement was on — we’re not calling the members back. The Senate was not going to do it. We wanted our energies focused on the president, the administration extending the moratorium. But the value of what she did, and I, again, I say, as a grassroots organizer myself, the public awareness is very important. You’ve heard me say a million times — President Lincoln said, “Public sentiment is everything. With it, you can accomplish almost anything. Without it practically nothing.”
But in order for public sentiment to prevail, people have to know. And that was a way for people to know.
I was glad that toward the end, she came around to saying we need the extension of the moratorium, as did Maxine. You know, there was a school of thought that said, “Let’s just go to the floor and lose.” I’m not — I don’t go to the floor and lose. Okay? And especially hard if you know that there’s nothing on the other side — the Republicans on the other side will resist.
That is worth unpacking.
Pelosi’s remarks refer to a “disagreement” with Bush, who apparently first sought to force her own legislative chamber to take up the issue but was ultimately rebuffed by the speaker, who “wanted our energies focused on the president.” Observers of the contemporary Congress often worry about back-bench members such as Bush presuming that they cannot affect the internal workings of Congress and therefore turning to outside venues to seek influence. But here Bush did seek to make Congress address an issue she felt passionately about. It was the speaker who insisted on a self-abnegating institutional position.
Pelosi then says that some of her allies would have liked to have taken this issue to the House floor to debate it, even if they might expect to lose there. But Pelosi insisted that she doesn’t “go to the floor and lose.” She seems to be saying that Congress is not the place to cultivate debate, change minds, and build a winning coalition. Instead, it is the instrument you use to ratify a deal that has already been worked out elsewhere. Taking an issue to the floor and losing represents an unacceptable risk for a majority party that needs to constantly demonstrate its own command of the House.
But more to the point, in Pelosi’s way of thinking here, going through Congress really doesn’t seem all that enticing — what does it add? After all, the White House is capable of moving the policy needle all on its own. If you are sure to be able to give such action a big, bipartisan show of support in Congress, then, by all means, go ahead. But if it is likely to be a close call — or even risk demonstrating that majority support does not exist — forget it.
This sets up a truly terrible dynamic for Congress. It’s one thing to have an executive branch willing to aggressively interpret the statutes governing their powers to support actions that might or might not have congressional support. But it’s another, altogether worse thing if the White House and its congressional allies first see whether they can get congressional cover for something and then, if they conclude they cannot, just figure out how to work around Congress. At that point, it looks an awful lot like Congress is an optional rubber stamp, useful to have on board but not necessary.
Pelosi’s historic run as speaker may well be finishing up, as she has sometimes suggested that the 117th Congress would be her last. She has already begun to shape her legacy in ways that suggest she wants to be seen as an institutionalist, a champion of the House and its traditions. Certainly, even as she and her two octogenarian colleagues have occupied the House’s top leadership positions, she has cultivated a younger cohort of Democratic leaders in the House.
Yet the eviction-moratorium episode also suggests that Pelosi may wish to be remembered more as one of her party’s great champions than as someone who cared about the thriving of the House of Representatives for its own sake. If the template for House-member success — the one urged on by the speaker herself — is media-swaying activism conducted outside the Capitol, then the proceedings inside have become something less than vital in our political system. That is a shame, because under our constitutional order, deliberation in Congress is truly indispensable.
Giving up on that possibility means that we expect good and legitimate policies to be precipitated from the mud fights on social media and the invisible plying of elites that happens out of the public eye. We will also have the deliberations of the Supreme Court, which will perhaps have the last word on the eviction moratorium; but it is unclear why Pelosi would think that the Court’s legalistic reasoning should be a good way to determine policy, or why her side should expect to come out on top, given the Court’s current composition. There are plenty of reasons to believe that the main objective of all of this maneuvering is to get the justices to bear the responsibility for terminating this already past-due policy, in spite of the impassioned pleas of Cori Bush and her allies.
There is one thing, however, that nobody can argue about with Pelosi: In August in the nation’s capital, we can all use some extra hydration. Let us hope that the watering holes inside the Capitol will be places where members encounter and persuade one another. Otherwise, we may all overheat.