As I discussed yesterday, I was astonished by the remarks of President Joe Biden on his support for extending the eviction moratorium, which was found to be unconstitutional by lower courts. It was later preserved by a divided Supreme Court despite the view of a majority that it was unconstitutional.  It was saved from being struck down merely by the fact that it was expiring.  President Biden acknowledged that his legal experts overwhelmingly told him that any extension would violate the Constitution. However, he then said it was worth extending the moratorium because it would take time for a court to intervene and, in the interim, they could rush out money to renters despite the lack of constitutional authority to do so.

Like many, I was mystified by the Supreme Court decision not to strike down the moratorium.  The 5-4 decision in Alabama Association of Realtors v. HHS turned on the fact that it was about to expire on July 31st. Chief Justice John Roberts and Justice Brett Kavanaugh voted to preserve it but Kavanaugh made clear in his opinion that he would vote against any extension as unconstitutional.  It was a decision decoupled from the merits. The unconstitutionality of the law was treated as simply inconvenient or irrelevant given the expiration.

In his press conference, President Biden acknowledged that most of the experts consulted by the White House said that an extension would be unconstitutional. However, he noted that he found a few who dismissed or rejected such views: “The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster … But there are several key scholars who think that it may and it’s worth the effort.”

Frankly, given the overwhelmingly liberal makeup of law faculties, it is astonishing that most still told the President that an extension would be unconstitutional. Moreover, it is not difficult to find experts who are cavalier about the Constitution and willing to sign off on any effort to achieve desire political or social results.

What is interesting is that Biden did not appear to accept their view but still thought violating the Constitution would be beneficial in this circumstance:

“There are a few scholars who say it will and others who say it’s not likely to, but at a minimum by the time it gets litigated it will probably give some additional time while we’re getting that $45 billion dollars out to people who are in fact behind on the rent and don’t have the money.”

The President said the quiet part out loud and admitted that they would use litigation as a delaying tactic to spend money without constitutional authority. That line will now likely be repeated at the top of any motion challenging the extension and seeking a temporary injunction.

President Biden’s position not only dismisses constitutional protections but disregards his own presidential obligations.

It was just six months ago that President Biden swore to the following words:

“I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

Chief Justice Roberts did not include an option for unconstitutional acts in the name of a good cause or when convenient. Biden agreed to uphold the Constitution to the best of his abilities.

The Supreme Court has made clear that the extension would be unconstitutional as was the original moratorium. Biden asked the CDC to use the very same authority in extending the moratorium to give him a pretense for the spending of federal money.  That does not seem to bother many legal experts. After all, this unconstitutional act would be done for a good cause. Yet, imagine if a Republican president announced that he was told that an order on drilling or subsidizing a religious organization was unconstitutional but would use litigation to get the money out before a court could intervene. The hue and cry in the media and from law schools would be deafening.

Biden came to office declaring a return to the “rule of law” but has actually racked up an impressive array of court losses.  Now he is treating a presumptively unconstitutional act as a purely tactical consideration to allow the spending of federal funds. That is not exactly what he pledged before he declared “so help me God” on January 20th.