No, Biden Did Not Violate His Oath of Office By Extending the Eviction Moratorium
If you want to talk about the rule of law, talk about the Republicans who packed the Supreme Court.
When President Biden extended the CDC’s eviction moratorium—which will literally keep millions of vulnerable Americans in their homes—he did something unusual: he admitted that the measure is likely illegal. Still, he said, getting a federal court to block the order will take several weeks, buying precious time for people on the verge of homelessness. This was, obviously, the right thing to do for anyone who doesn’t want to witness a massive housing crisis.
The norm-protectors, however, are not so convinced. On Thursday, the Washington Post editorial board blasted President Biden’s decision, stating, “Mr. Biden does not get a pass on the rule of law because his heart is in the right place.” The CDC’s action, the board wrote, is “almost certainly illegal,” and the decision to issue it was “at the expense of the rule of law.” The conservative National Review covered the news by claiming “Biden announced just now that he intends to violate his oath….”
It’s worth recalling how we got here. In September, the CDC issued an eviction moratorium pursuant to its statutory authority “to make and enforce such regulations” that are “necessary to prevent” the “spread of communicable diseases.” For those who are unfamiliar with the administrative rulemaking process, this is how much of the regulatory regime in this country operates: executive agencies promulgate rules pursuant to fairly broad statutory authority. In this case, it’s not hard to understand the CDC’s logic: sending millions of vulnerable people on to the streets during a deadly pandemic is probably not the best idea.
But landlords sued, saying the order went beyond the CDC’s statutory authority. Lucky for them, Republicans have spent the past several decades packing the federal courts with far-right justices who, in particular, hate the administrative state. The case made it to the Supreme Court, where four justices (Barrett, Gorsuch, Alito and Thomas) were prepared to immediately overturn the moratorium. But Justice Kavanaugh, as the controlling fifth vote, held that the rule could stay in place until it was scheduled to expire on July 31, at which time it could only be extended with specific congressional authorization. Notably, John Roberts sided with the liberal justices in concluding that the CDC had authority to issue the rule.
What followed was admittedly a terrible look for Biden and the Democrats. Despite the fact that Democrats control both chambers of Congress and the White House, there was no serious effort to extend the moratorium, and Congress left town before anything could get off the ground. Ultimately, after a group of progressive lawmakers exerted significant pressure on President Biden to unilaterally extend the moratorium, he was left with two options: (1) extend the order knowing that the Supreme Court would likely block it sooner than later or (2) sit back as a major housing crisis ensued.
He, rightfully, chose the former, and made no effort to hide his intentions. While it is certainly unusual to concede the illegality of an action as you announce it, it is far from irregular to adopt a policy knowing full well it could run into trouble in the courts. Nearly every president has had some legislation or executive action overturned by the courts—that is, in fact, one of the major reasons we have federal courts in the first place. Nobody serious said President Obama violated his oath of office when he signed the Affordable Care Act, which everyone in the world knew at the time could run into trouble in the courts—because that obviously would have been preposterous.
And notably, President Biden’s new executive order is not identical to the order overturned by the Supreme Court. Rather than covering the entire country, the new order is limited to areas “experiencing substantial and high levels of community transmission.” There is certainly a legitimate argument that by tailoring the order more closely to the spread of Covid-19, it is more within the CDC’s authority.
Will that change the mind of the five arch conservatives on the Supreme Court? Probably not, and therein lies the problem. Despite the Democrats’ waffling, Biden’s options were ultimately limited for one primary reason: Republicans stole a seat on the Supreme Court and rushed a replacement to fill another. Again, even John Roberts believes the CDC has the authority to issue this moratorium—if the court was legitimately constituted and not captured by far-right interests, the CDC’s order would still be operating legally as we speak.
In order to accuse President Biden of violating the rule of law, you have to accept the current Supreme Court’s conception of the rule of law as legitimate. If that was the case, Democrats would not be allowed to do virtually anything. Let’s face it, there is no world in which gun control legislation, or voting rights legislation, or comprehensive climate legislation is upheld by this Supreme Court. Are Democrats violating their oaths of office by pushing those priorities?
Of course not, because that would mean surrendering to a rogue Supreme Court and the Republican-led campaign to pack it with far-right ideologues. Part of fighting back against this Court means forcing it to put its money where its mouth is—preemptively holding back for fear of what Clarence Thomas will say is a recipe for disaster and a guarantee that nearly every progressive priority is doomed. If you want to talk about norms, or the rule of law, talk to Republicans who stonewalled Merrick Garland and rammed through Amy Coney Barrett days before an election. Don’t blame President Biden for pushing back in the slightest way possible.