President Biden, through the CDC, on Tuesday took the extraordinary action of violating his oath of office by reinstating a moratorium on evictions even though he knows it’s unconstitutional. Meanwhile, Senate Republicans stand ready to hand Biden the biggest victory of his presidency by delivering him the votes he needs to get his domestic agenda across the finish line. They should be doing the opposite. In response to Biden’s power grab, they should refuse to do business with him. They should shut down the Senate.
Let’s be clear. Presidents have exceeded their executive authority previously. With DACA, the Obama administration said, illegally, that it would not enforce existing immigration laws. President Trump exceeded his authority by using emergency powers to divert military construction funds to try to build a border wall. And the unconstitutional CDC eviction moratorium was first issued during the Trump administration.
But what Biden did yesterday was worse than the actions of either Obama or Trump. The reason is that in the previous circumstances, there was some legal gray area, because the court had not explicitly ruled on the matter and arguments were being made on both sides about how the courts would respond. In this case, the Court has already weighed in. And Biden knowingly took action that the Supreme Court explicitly said was illegal.
In a June ruling, the four most conservative justices (Justices Thomas, Alito, Gorsuch, and Barrett) thought the prior moratorium should be immediately stopped. A fifth justice, Brett Kavanaugh, agreed that the CDC “exceeded its existing statutory authority by issuing a nationwide eviction moratorium.” In the interests of providing time for people and Congress to respond, he voted to allow the moratorium to stay in place for another few weeks. Yet he wrote, “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”
Congress did not extend the moratorium before July 31, and so the CDC had no authority to intervene.
Biden knew this ruling was out there. Gene Sperling, Biden’s senior adviser, said, “the President has not only kicked the tires; he has double, triple, quadruple checked. He has asked the CDC to look at whether you could even do targeted eviction moratorium — that just went to the counties that have higher rates — and they, as well, have been unable to find the legal authority for even new, targeted eviction moratoriums.”
Yet they went ahead and issued it anyway, under pressure from the Left. And Senate majority leader Chuck Schumer is not only celebrating the unconstitutional action, but urging Biden to take what would likely be another unconstitutional action of canceling student loans.
Republicans have remained largely silent on Biden’s brazen abuse of his constitutional oath, perhaps out of fear that the eviction moratorium may be popular. This is a gutless move that represents an abdication of their own responsibility to defend the Constitution and assert the authority of the legislative branch. It’s time for them to stop playing footsie with this lawless administration and start fighting back.
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