Realizing that President Biden’s new eviction moratorium edict is blatantly lawless — by the administration’s own assessment, which was still ringing in everyone’s ears when Biden decided to appease his party’s Bolshevik wing by decreeing it anyway — Democrats are now pleading with their crazies to aim the tirades at the Supreme Court instead of the White House.
“I hope that progressives will put as much attention on the inevitable Supreme Court ruling swatting this down as they did on Biden the last few days,” said Brian Fallon of Demand Justice, a former Obama Justice Department spokesperson who advocates for enlarging the court. “I hope that all the energy and compassion for people who stand to suffer if the moratorium was not continued will remain when the Supreme Court becomes the villain instead of Joe Biden.”
Fallon said that “ideally” Biden would “castigate” the court if it torpedoes the eviction ban, but declined to predict that the president will do so.
In just a few lines here, we see nearly everything that is wrong with government.
First, anyone notice the 800-pound gorilla Fallon fails to mention? Right . . . Congress! The media-Democrat complex drone on about Biden’s “compassion” and the “inevitable” invalidation of it by the conservative-dominated Supreme Court. But this is not a conservative-liberal controversy. It’s a division of authority question.
As I observed last night, the constitutional issue is not the Commerce Clause, as it would arguably take some originalist revamping of the Court’s jurisprudence to invalidate the moratorium. This is a straightforward statutory issue: Congress has not empowered the executive branch (via the CDC or any other component) to intrude on private rental contracts by barring evictions. The salient thing is not Biden’s heart or the Court’s ideological trajectory. It is that Congress has not enacted legislation that either imposes an eviction moratorium or delegates authority to do so to the CDC.
So . . . Fallon hopes that woke-progressives, having brow-beaten the hapless Biden into doing something he knows is illegal, will now shift gears and brow-beat the justices — they’re lookin’ at you, Brett Kavanaugh — into prioritizing empathy over black-and-white legal analysis. But what do Fallon and his allies studiously avoid suggesting? That the Democratic-controlled House and Democratic-controlled Senate propose a bill that restricts evictions.
Why not? Because such legislation would be unpopular. Because it would powerfully illustrate that, contrary to hard-Left anti-property dogma, the people being crushed by the moratorium are small-business owners who can’t pay their mortgages and other bills because the (mostly modest) rental payments on which they depend have been suspended by the government.
For all the demagoguing of the “ultra-conservative” Supreme Court, progressives know the Court could not care less whether the law provides for a moratorium. The justices would simply say: If it’s in the law, we’ll uphold it, but we’re not going to put it into the law — that’s Congress’s job.
The Constitution insulates the Court from politics precisely so that the justices can apply the law as it is written, without fear or favor, and regardless of whether they think it reflects good policy (as long as it is constitutionally compliant, a matter on which they indulge a rebuttable presumption that Congress acts lawfully). Yet, the Left assumes, and not without reason, that its mau-mauing works. Under circumstances where something lawless and oppressive against voters is the objective, extortion is seen as a better strategy than pressuring accountable congressional Democrats to enact a law.
Of course, Fallon also hopes Biden will join in the “castigation” of the Court, something Democrats would condemn a Republican president for doing.
Unlike Fallon, I believe it is anything but clear that the Roberts Court will inevitably swat down Biden’s lawless moratorium. The risk-averse justices failed to swat down the last one, though it, too, was lawless, because it only had five more weeks to run. This time, Biden strategically structured the moratorium to lapse after 60 days — i.e., it is due to expire while the Court is on its long summer recess.
It would require effort to get a case up to the Supreme Court and convince the justices that they needed to expedite action on it. Hopefully, as aggrieved owners sue, district judges will promptly issue injunctions against the moratorium. But the courts could stay the injunction until the Supreme Court has a chance to rule. The justices could easily drag their feet until the moratorium lapses, and then say the case is moot.
That is what Biden is banking on. As usual, the process is as much the penalty as the underlying illegality.