During the 2020 presidential campaign, then-candidate Joe BidenJoe BidenWhite House: Window for finalizing sweeping budget package 'closing' Jayapal says tuition-free community college 'probably won't' be in spending plan Jan. 6 panel votes to hold Bannon in contempt MORE told voters that the choice between him and Donald TrumpDonald TrumpTrump defends indicted GOP congressman House to vote Thursday on holding Bannon in contempt Youngkin calls for investigation into Loudoun County School Board amid sexual assault allegations MORE 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 ThomasClarence ThomasLocked and Loaded: Supreme Court is ready for a showdown on the Second Amendment Two conservatives resign from Biden's Supreme Court commission Sotomayor says recent changes were made because male justices interrupted female colleagues MORE, Samuel AlitoSamuel AlitoLocked and Loaded: Supreme Court is ready for a showdown on the Second Amendment The Hill's Morning Report - Presented by Altria - Jan. 6 panel flexes its muscle Sen. Whitehouse blasts Alito speech: 'You have fouled your nest, not us' MORE, Neil GorsuchNeil GorsuchLocked and Loaded: Supreme Court is ready for a showdown on the Second Amendment Justices weigh request for information on CIA's post-9/11 torture program Supreme Court declines to hear dispute over DC representation in Congress MORE and Amy Coney BarrettAmy Coney BarrettLocked and Loaded: Supreme Court is ready for a showdown on the Second Amendment Biden's Supreme Court commission ends not with a bang but a whimper Biden's Supreme Court reform study panel notes 'considerable' risks to court expansion MORE 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 KavanaughBrett Michael KavanaughLocked and Loaded: Supreme Court is ready for a showdown on the Second Amendment Why Latinos need Supreme Court reform Feehery: A Republican Congress is needed to fight left's slide to autocracy MORE 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 office.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.