Columns, Constitutional Law, Lawyering

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 him 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 office.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

157 thoughts on “Canceling the Constitution: Biden Hailed for Violating Rule of Law to Extend Eviction Moratorium”

  1. Sounds like good enough grounds for impeaching the entire executive branch.

  2. The American Marxist does not obey our laws only use them against us.

  3. Tribe is not a native American. He’s a Eastern European Jew whose family came to the US by way of China when he was a baby. Like many other immigrants, he has no loyalty to the United States or to its founding principles. He’s a Marxist whose main goal in life is to destroy the United States.

    1. Everyone who isn’t conservative or a trumpist is a Marxist these days. Sheesh.

      1. Pro-Life, Liberty, and the pursuit of Happiness under a Constitutional framework, yes.

        Marxism as in redistributive change, social justice, and diversity dogma (e.g. racism), yes. Obamacares as in progressive prices and availability. Now, Bidencares as in progressive prices and availability.

  4. Can they abort the baby, cannibalize her profitable parts, sequester her carbon pollutants, and have her, too? A progressive
    path and grade. Under The Constitution, less the Twilight Amendment (i.e. liberal license), they can’t.

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

    It’s funny that Turley is chafing at the very thing he has done for Trump while he was in office.

    Turley’s diatribe would have more credibility if he held that same standard during Trump’s reign.

    SCOTUS did not rule this as unconstitutional at all. All they did was decide on staying the CDC’s moratorium or not. Clearly they didn’t. None of the justices heard arguments against or for the moratorium based on the merits of the case.

    Congress GAVE the CDC this authority. The CDC has the authority to prevent people from traveling state to state to prevent the spread of disease. By imposing an eviction moratorium it prevents people from moving to another state or areas where they can either be exposed or spread COVID. It’s well within their authority.

    A mass of evictions can create mass movement of people and often those evicted go to relatives in other states or other regions of a state. These are areas that the CDC does have authority on.

    Turley and many conservatives are upset that Biden is effectively taking advantage of a grey area to benefit the vulnerable. It may or may not be unconstitutional according to the scholars Turley mentions. The kicker is that scholars aren’t Supreme Court justices and until the Supreme Court officially rules such a move unconstitutional it is perfectly legal. Ironically Trump relies on this kind of tactic all the time. Just look at his tax return fight.

    SCOTUS can’t do anything about it until someone directly challenges the CDC’s authority.

    Remember, it is SCOTUS who allowed the CDC to continue the moratorium until it expires. If it was blatantly unlawful it would have stayed the moratorium. It’s not as clear cut as Turley wants it to be.

    1. The tax return flight, or the quasi-legal witch hunt without borders.

      The CDC misrepresented the presence and spread of the virus. They misrepresent the danger of masks, the safety and effectiveness of quasi-vaccines, and denied early treatments that would have mitigated its progress and collateral damage. The executive presented a solution in the short term, and congress can legislate a sustainable solution that would respect civil rights equally, not equitably.

      1. Everything you claim about the virus, the nonexistent “danger of masks”, the safety and effectiveness of “quasi-vaccines” and the nonexistent “early treatments” (Hydroxychloroquine) are lies that have already been disproven. Hydroxychloroquine is not only ineffective in preventing and treating COVID, it is dangerous when used for conditions other than those for which it has been approved. That has been laid to rest by multiple reliable studies. The vaccines have been thoroughly studied as to safety and efficacy, and multiple millions of doses have been administered, which brought a dramatic decrease in COVID infections and deaths until the Delta variant was allowed to develop and flourish by the willfully ignorant disciples of alt-right media. Now, COVID infections are on the rise again, especially as to children under the age of 12 who aren’t eligible for the vaccine yet, and it’s the fault of people like you, who believe and keep spreading lies.

          1. I don’t click on links you provide because I simply don’t trust you. I know what the CDC, the WHO, the state health commissioners of all 50 states say, which is consistent with the position of all major medical societies, and I believe them when they recommend masks, social distancing and vaccination. Because Trump and Republicans have taught the faithful to discount scientists, you don’t want to believe these authorities, and look for outliers with different opinions. That’s why we have a Delta variant crisis right now.

          2. “Addressing Dr. Daniel Stock’s Claims”

            “A surprisingly large number of people have sent me a video that is inundated with disinformation about COVID-19 and its reach seems considerable so I have deemed it significant enough to address. In the video, one Dr. Dan Stock from Indiana at a school board meeting opines at length about all the things we’re supposedly doing wrong with COVID-19 (by the way, the FSMB has now stated that spreading misinformation about COVID-19 vaccination may put medical licenses at risk, though state medical boards have final say it seems; rest assured I will be examining the rules in Indiana quite closely). The speech is little more than a verbal gish gallop: a tactic used by science denialists wherein they post a bunch of links that they claim to support their points but in reality most of the citations are unsupportive or even unrelated to their claim- but this serves the appearance of evidence. He is doing this but with words- he is making a series of incorrect arguments (that are self-contradictory) and essentially seeking to overwhelm opposition with the volume of arguments he makes. The thing is, as I’ll discuss, he discredits himself very early on, so you don’t have to subject yourself to listening to his vile nonsense because I did it for you.”

            Continue reading, here:

            https://www.deplatformdisease.com/blog/addressing-dr-daniel-stock-claims

            The article ends with this:

            “I can honestly say that I don’t think there was any part of the 6 minutes and 30 seconds of that entire video that was completely truthful or accurate which is quite unsettling.”

            — Edward Nirenberg

  7. When tenants do not pay the owners and the owners do not pay the bank and the bank does not pay its shareholders but all are required to pay taxes upon monies not received are all now in a blissful state of social justice?

    2. In addition to a moratorium on evictions, there was a moratorium on foreclosures, too. It does no one any good for there to be a glut of court cases clogging up dockets, a glut of homeless people, a glut of apartments and homes for rent without qualified renters (because an eviction is a black mark on their credit), and a glut of rental properties for sale. This sets the stage for “investors” to swoop in and control the rental housing market–not good for any of us. “Investors” don’t care about the community–just the money.

      1. “. . . there was a moratorium on foreclosures, too.”

        For certain types of *single-family* homes.

        Please try to get the facts straight.

  8. As I said previously, I find it interesting and curious that JT and others are discussing this issue as a constitutional one when the problem appears to be the need for more explicit authority under section 361 the Public Health Service Act. Furthermore, JT does not really cite a constitutional provision or do any typical constitutional analysis although I guess it might be the failure to faithfully execute the laws provision.

    1. Concerned citizen,

      You make a good point. Turley’s argument consists of the unconstitutionality of the CDC’s moratorium without citing exactly what is unconstitutional about it. Congress GAVE the CRD the authority to quarantine, limit travel and confine people in order to prevent the spread of contagious disease. Preventing evictions are one way to prevent people from traveling and spreading or getting infected.

      Many states imposed foreclosure and eviction moratoriums themselves and even suspended property tax payments for landlords and rental property owners. They got plenty of assistance too. They weren’t left holding the bag. In fact it was those billions of dollars in federal government assistance to States that allowed them to fill the hole the property tax drop left them.

      As long as the Biden Administration’s CDC has the authority to quarantine and restrict travel to individuals to prevent contagious viral spread it will continue to do so until Scotus formally rules on the constitutionality of the rule.

      It’s SCOTUS fault it didn’t stop the moratorium and let Biden take advantage. Especially when the new moratorium is more narrow in scope.

  9. SCOTUS ruled it unconstitutional.
    But Justice Kavanaugh, while did not strike it down, gave the Biden admin a “out.” In short, it is unconstitutional, so DO something about it.
    They didnt!
    Cori Bush tried to bring it to the attention of everyone by sleeping on the Capitol steps. AOC called Biden and Pelosi out on it with their 11th hour plea for an extension , rightly so for their lack of leadership to do something!
    Was it by design? Or gross incompetence?
    In the past week I have read more than a few articles from various sources, both left and right, about the lack of trust and faith Americans have in our institutions from political class to the media.
    I fear something wicked this way comes.

  10. I’m surprised by Turley here. Maybe the SCOTUS would rule against this new CDC ban (were it challenged) and maybe it wouldn’t. Obviously they’re about 50-50 on it. Circumstances change. This ban is targeting specific regions of the country the other didn’t. This ban is while the pandemic is gaining strength, not losing it. This ban is temporary not open ended. This ban is by a second different president suggesting broader political support than the first perhaps. All sorts of arguments could be made slightly differently and then of course the SCOTUS recent decision FAILED to overturn the CDC ban. So on what possible basis should we conclude a new ban is a violation of the rule of law? it’s not even a violation of “guess what the SCOTUS would say”. To be a violation of the rule of law surely it would have to violate an actual SCOTUS decision or else just be clearly unconstitutional. But since we just had a case where the SCOTUS narrowly sided with the CDC how can anyone say they know how the SCOTUS would vote next time, if there is a next time? A lot of decisions are narrowly decided. Should we say all such cases should guess maybe the SCOTUS would rule the opposite way next time? Maybe they will, maybe they won’t.

  12. I infer that Roberts held that CDC does have the power to direct a halt to evictions.
    Trump was never a threat to anything, he always obeyed the courts no matter how ridiculous the grounds on which they thwarted him, and he had no institutional support to do otherwise.
    The real threat was always from Democrats and this is now being demonstrated.

    1. It’s difficult to know what Roberts was thinking, other than that he voted with the liberal majority in this instance. I believe the only written opinion was Justice Kavanaugh’s concurrence with the majority. He may be in complete agreement with Kavanaugh’s assertion that the “eviction moratorium”, though unconstitutional, was going to expire anyway in a few days, so there would be no point in striking it down.
      That is of course a ludicrous position to take.
      If a law is unconstitutional, it should be stricken by the Supreme Court when the opportunity arises.
      They could have found it unconstitutional, and stayed their ruling until 7/31, and then at least it would have had the force of settled law.

  13. Biden did not such thing but then I have come to expect this kind of discussion coming from you.

    1. So Holmes, you are saying that Biden didn’t admit he actions were contra to the SCOTUS? You are saying that you think what the CDC did is Constitutional? Or are you just being a typical liberal and not really discussing the merits of a situation?

  14. What Biden has done, is truly an “IMPEACHABLE” offense. And, Lawrence Tribe should lose his law license for his overreach and attack on the rule of law and the Supreme Court. If Trump were still President, and Rudy Guiliano was giving this advice, you can be sure that both would be done without hesitation by Congress and the Bar where he is licensed.

    1. It’s interesting to see the same people who self micturate at challenges to other branches, gleefully support disregard for the rule of Law because they agree with the outcome.

      Is there any norm or law that the extremists on the left are unwilling to violate to achieve their ends?

  15. Kavanaugh tried to be nice.

    Biden just showed that the Lefties play by different rules; they play hardball.

    If this isn’t reversed, the game changes

    Unfortunately, there are some on the Conservative side who will take that as a license to do the same when (yes when) we are back in power.

    Consequences could be ugly.

    1. I love your optimism with your “res when” paren. God willing they will not be able to destroy the last line of defense–the Supreme Court and the rest of the Federal Bench. If that happens, it’s game, set, match to the Left and America–as we’ve know her for nearly 250 years–is finished.

    2. Monument, I kind if thought the same thing and I hope that it got under Kavanaugh’s skin and he learned something about the left in this day and age. Although you would have thought that after his nomination process he wouldn’t need another lesson.

  16. We have to start removing from the office ALL elected officials who violate the oath of their office to defend ALL laws, even those they do not like, and removing unelected officials that break laws too. Otherwise, we will not have a country.

    So let me get it straight – millions of foreigner invaders currently flooding our nation to conquer our wealth and send to their countries (which would be act of war at the time our Republic was created) do not have to obey by our laws, our elected officials do not have to obey laws they do not like, but we, the peasants, have to obey laws or they will put us in isolation in jail for 7+ months with no charges… Which country are we living in? Is that North Korea? Iran? USSR? China? Did we just become a dependent territory of a foreign hostile nation but people are not aware of that yet?

  17. Particularly bizarre because Biden’s not saying owners should forfeit their mortgaged properties or forgo rent receipts, he’s saying the taxpayer should foot the bill for every renter in America. Because you know they all halted rent payments to take advantage of the moratorium. Apparently the left believes the taxpayer should provide free housing to those who do not own or opt to purchase.

    1. Bidencares, as with Obamacares, shares/shifts responsibility to normalize progressive prices and availability.

    2. Quite the contrary: Biden is saying landlords must forgo rent receipts (in the absence of legal process to evict non-paying tenants), but he’s not saying taxpayers should foot the bill. If taxpayers did foot the bill, then an eviction moratorium wouldn’t be a “taking” under the 5th amendment. Requiring the bourgeoisie (property owners) to bear the cost of this “policy” rather than the public at large is one thing that makes it unconstitutional.

      Where I live, the eviction moratorium began with a county ordinance which was supplanted by a state edict, now supplanted by Biden’s order. Three levels of government — local, state, and federal — each instituted the same unconstitutional policy. Why did they start it and how will it end?

  18. How is knowingly violating the key provision of your oath of office not an impeachable offence?

      1. Jeff, yet another fantastic, succinct legal rebuttal. Your law school professors must be proud.

  19. My tenant is running a whorehouse in my unit and she won’t pay rent. Today I am spraying the place with syphilis spray.

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