USA 2020 Elections: Thread

grarpamp grarpamp at
Wed Aug 11 22:35:18 PDT 2021

> Biden Illegally Commands the CDC to Ignore SCOTUS

Canceling The Constitution: Biden Hailed For Violating Rule Of Law To
Extend Eviction Moratorium

Below is my column in the Hill on the extension of the eviction
moratorium — a move that his White House Counsel and most legal
experts told him was unconstitutional. However, according to the
Washington Post, Speaker Nancy Pelosi encouraged Biden to call Harvard
Professor Laurence Tribe who reportedly advised hm that he had the
authority. I have had many (and sharp) disagreements with Tribe over
the years (including profane and personal attacks) but there is
usually some good-faith underlying disagreement in controversies like
impeachment. This is not such a case. I fail to see the credible basis
for telling a President that the CDC can use the same authority that
five justices just declared it did not have.

Here is the column:

During the 2020 presidential campaign, then-candidate Joe Biden told
voters that the choice between him and Donald Trump was between the
lawful and the lawless. He called for voters to support “the rule of
law, our Constitution,” a choice repeated mantralike by the media to
“end Trump’s assault on the rule of law.” Now, six months into his
presidency, Biden is openly flouting the Constitution with a knowingly
invalid extension of the eviction moratorium — and some law professors
and advocates on the left are cheering him for it.

A few weeks ago, the Supreme Court ruled on the authority of the
Centers for Disease Control and Prevention (CDC) to impose a
nationwide moratorium on the eviction of renters during the pandemic.
Some of us criticized the CDC order as unconstitutional. The reason is
the breathtaking authority claimed by the CDC under a federal law that
gives it the power to “make and enforce such regulations as in [its]
judgment are necessary to prevent the introduction, transmission, or
spread of communicable diseases.”

I have long been a critic of such unchecked and undefined authority in
pandemics. This, however, is a particularly chilling example. It would
give the CDC authority over huge swaths of our economy to avoid even
the possibility of the “introduction” or spread of a disease. It means
that a Constitution designed to prevent tyranny and authoritarianism
becomes largely irrelevant if you put on a white lab coat. After all,
the law was designed to control disease, not democracy, as a public
health priority.

In its 5-4 decision in Alabama Association of Realtors v. Department
of Health and Human Services, the Supreme Court kept the CDC
moratorium in place but left no question that a majority of justices
ultimately view the CDC order as unconstitutional. On the minority
side of the vote, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch
and Amy Coney Barrett wanted to suspend the eviction moratorium as
unconstitutional. Yet the CDC’s original order was about to expire
anyway, so — in a somewhat baffling concurrence — Justice Brett
Kavanaugh supplied the fifth vote in favor of the CDC to allow the law
to simply expire and thereby enable an “additional and more orderly
distribution of the congressionally appropriated rental assistance.”
Thus, Kavanaugh voted with the majority in this case — but also
indicated that he agreed with his conservative colleagues on the
larger point that the CDC never had the authority to issue the
nationwide eviction moratorium in the first place without a
congressional act.

Biden acknowledged the obvious — that any new order to extend the
moratorium would be unconstitutional.

Indeed, he admitted that legal experts overwhelmingly told him so:

    “The bulk of the constitutional scholarship says that it’s not
likely to pass constitutional muster.”

Yet he added that he was able to find “several key scholars who think
that it may and it’s worth the effort.”

The fact that most scholars relied upon by the Biden White House said
the move would be unconstitutional is itself remarkable. Given the
makeup of most law faculties, Democrats in Congress usually can expect
hundreds of supportive academics to sign letters and attest to their
legal positions.

The question then arose as to who would offer Biden constitutional
cover when virtually every other liberal professor declined to do so —
and the “several key scholars” were guessed by some of us to be a
single figure: Harvard law professor Laurence Tribe. After his own
White House counsel agreed that the move would be unconstitutional,
Biden reportedly told his chief of staff, Ron Klain, to call Tribe,
who has been consistently there for Democrats, from supporting court
packing to declaring Trump a terrorist to attacking Republicans and
those with conflicting views.

Tribe and I have long disagreed on constitutional questions, but the
partisanship was often laced with some plausibility. The advice in
this instance is incredible for its sheer mendacity. The court clearly
stated that the CDC lacks this authority, but Tribe reportedly assured
Biden that this technically would be a new order, even though it is
based on the same unconstitutional claim. It is like being given a
parole for stealing a BMW and then immediately stealing a Lexus
because it is a different car. The problem was the act, not the make
of the car.

What is particularly alarming was Biden’s reason for why it may be
“worth the effort” — that “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.” In other words, with appeals,
the Biden administration could rush out money before the courts could
shut it down.

Biden was hailed for his extraconstitutional commitment to social
justice. One liberal commentator declared that “with one small action,
Biden reveals himself as a better leader than Trump.” That “small
action” was violating the Constitution — the document he swore to
uphold, “so help me God,” at his inaugural. Nevertheless, gutting the
rule of law is somehow now seen as “a sign of leadership in action.”

Biden is not a first-time offender. When he was vice president, the
Obama administration green-lighted the expenditure of billions under
ObamaCare despite lacking congressional approval. I represented the
House of Representatives as lead counsel in successfully challenging
that clearly unconstitutional act, but the administration was never
required to get the money back. With the cover offered by Tribe in
this instance, Biden apparently hopes to repeat the same tactic to bar
evictions while evading the Constitution.

When confronted on his unconstitutional strategy, Biden repeatedly
reminded reporters that a pandemic is raging. Yet, just months ago,
Biden declared his election would amount to the triumph of the “rule
of law” and would show that “the flame of democracy” cannot be
extinguished, “not even [with] a pandemic or an abuse of power.”

So, Biden is now blowing out that flame while attempting to excite
political demands for extraconstitutional action. It will come at a
great cost for the country and his own legacy. The oath that he took
on Jan. 20 did not include an exception for political convenience.
Indeed, it is often inconvenient to uphold the Constitution — but the
alternative is a type of self-eviction on the basis of one’s oath of

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