Supreme Court Delivers New Rebuke to the Biden Administration in Reinstating the “Remain in Mexico”

The Biden Administration has racked up a long line of losses in federal courts in what is one of the worst records in the first six months of any modern presidency. While most Administrations tend to minimize such test cases to avoid creating bad precedent, the Biden Administration has litigated with an utter abandon — elevating political over legal considerations in litigation. The latest is one of the most disturbing. This week the Supreme Court ruled 6-3 to strike down President Biden’s renewal of the controversial eviction moratorium.  It was the second time that a majority of justices declared the moratorium as unconstitutional but, as in other areas, the Biden Administration has become openly and chillingly dismissive of such legal considerations.

The unconstitutionality of the moratorium was never in serious doubt but Biden admitted that he ignored the advice of his own White House Counsel and virtually all of legal experts consulted by the White House.  At the urging of Speaker Nancy Pelosi, Biden then called Harvard Professor Laurence Tribe who reportedly told him that he could go ahead with a new order even though a majority of Supreme Court justice previously declared it unconstitutional.  In following Tribe’s advice, the Biden Administration increased the justices rejecting the basis for the moratorium from 5 or 6 members.

In the prior decision, the Court ruled 5-4 decision in Alabama Association of Realtors v. Department of Health and Human Services to keep the CDC moratorium in place but five of the justices noted that the CDC order as unconstitutional. Surprisingly, Justice Brett Kavanaugh (who supplied the fifth vote in favor of the CDC to allow the law to simply expire in a few days rather than strike it down) stated that the order was unconstitutional due to the lack of authority for the CDC to issue such moratoriums.

Yet, Democratic members and groups pressured Biden for a new extension of the moratorium. In a shockingly frank press conference, Biden admitted  “The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster.” However, he added that he was able to find “several key scholars who think that it may and it’s worth the effort.” Biden admitted that it was “worth the effort” because they could try to get money out the door before being declared by the courts as acting unlawfully.

Many of us opined at the time that “several key scholars” was likely one scholar: Tribe. So soon thereafter, the Biden Administration issued the order and both the trial and appellate courts stated the obvious that the order was clearly unlawful. Undeterred, the Biden Administration appealed to the Supreme Court which declared that it was “virtually certain” that the order would be struck down for the various reasons stated by many of us, including Biden’s own White House counsel.

Biden expressly discarded with the constitutional considerations in favor of political expediency, even though it meant spending massive federal funds without legal authority. It is a lawless attitude that becoming a signature for this Administration. The Administration has continued to unilaterally end policies without complying with federal laws despite equally clear authority from the Supreme Court. Recently, the Administration was reversed by the Supreme Court in ending the Trump “Remain in Mexico” (RIM) policy along the Southern Border. The lower court found that Biden violated the Administrative Procedures Act (APA) in taking the action without satisfying federal requirements for a full consideration of objections and countervailing facts. It is the same basis that Democrats used to successfully challenge some Trump immigration policy changes.

When the APA attack was used against the Trump Administration, I wrote that Democrats might regret the effort when the same attack is used against a successor Democratic president. Now it has. The response has been . . . well . . . Trumpian. The media and Democrats (who previously celebrated this very legal challenge) are denouncing its use as raw partisanship by rogue judges.  New York City Mayor Bill de Blasio attacked the Supreme Court as a “group of right-wing extremists” for the ruling.  Despite a term marked by notable unanimous and nonpartisan decisions by the justices, law professors and liberal commentators resumed calls to pack the Court with an immediate liberal majority to dictate better outcomes.  After the decision on the eviction moratorium, former Secretary of Labor Robert Reich demanded the resignation of Justice Stephen Breyer in addition to packing the Court.

On CNN, host Jim Sciutto lashed out at the justices who upheld the lower court and reinstated the policy: “Explain to me how — the Supreme Court is supposed to be on principle and precedent. How can you have conservative justices who for years have been talking publicly about the president has these powers, we respect and support a broad executive power. How do they manage that?”

The problem is that the Court previously ruled in the same way against Trump. In 2020, Chief Justice Roberts voted with four liberal justices to block Trump’s effort to suspend the Deferred Action for Childhood Arrivals (DACA) program unilaterally put into place by President Barack Obama. While Scuitto lashed out at the conservatives for supposedly switching their views for political reasons, he entirely ignored the three justices who voted to block Trump’s anti-DACA policy on the same grounds that they rejected in reviewing Biden’s anti-RIM policy.

Biden’s disregard for such legal authority has become manifest in other areas. Recently, Biden made an astonishing pledge that he would effectively subsidize any teachers who defied state orders barring mask mandates in states like Florida and Texas. The President declared that, if any teacher faced a cut in pay, “the money from the American rescue plan can be used to pay that person’s salary 100%.”  That is an unprecedented promise to effectively indemnify the violation of state law or orders by a president. It is not clear if Biden thought out the implications of his promise since it could force the federal government to effectively take over large part of the state educational budgets. Likewise, if a teacher is fired, will Biden pay an effective pension in return for defying the Florida law.

What is most worrisome about these moves by the Biden admission is that they are neither subtle nor defensible. They are acts in open defiance of the existing law or recent rulings of the Supreme Court. After running on returning the country to strict adherence to “the rule of law, our Constitution,” Biden is honoring that pledge primarily in the breach.

A version of this column ran on Fox.com.

136 thoughts on “Supreme Court Delivers New Rebuke to the Biden Administration in Reinstating the “Remain in Mexico””

  1. Wait a minute… are you implying that the people who openly stole the 2020 elections may be “chillingly dismissive” of the law?? Who woulda thunk it? But..but…orange man bad!

  2. Young,

    I fear Christian Dominionism. Look it up. Rejecting all religions makes me rational since I reject blind faith.

    You wanna bet that more Jews died at the hands of Christians over 2 millennium than the hands of Muslims? The Holocaust, for instance, was perpetrated by Christian observing soldiers and policemen from Germany, Austria, Poland, Lithuania, Ukraine and Romania as well as murderous Christian townsfolk under their auspices.

    1. Silberman — “Rejecting all religions makes me rational since I reject blind faith.”

      ***
      I have seen that thought before. You are in error. You are not rational. You have not rejected blind faith. You have blind faith that there is no God. That idea is as faith based as believing there is one. You can no more demonstrate that there isn’t a god than I can demonstrate that there is one. Rejecting existing religions is easy enough. They are riddled with inconsistent dogmas, but beyond that, there is no true knowing. If you were rational you would be an agnostic. There is something instead of nothing. Why? Don’t know is the only answer to that question at our current state of knowledge.

      What seems peculiar to me is that some of the atheists I have seen are as evangelistic and militaristic as other ardent faith-based beliefs. I listened in while some medical students were complaining to a professor that because they were atheists they couldn’t possibly take the Hippocratic Oath beginning as it does, “I swear by Apollo…”

      I had to interject. “What possible difference could it make to you? Are you afraid you are going to offend the God you don’t believe in?” Yes, you atheists have faith-based belief, and it is nuttier than many faith-based beliefs. Personally I thought it would be fun to take an oath to Apollo and the rest of the gods in that oath and engage in a tradition more than 2,000 years old. I would have loved it. I didn’t think the God I wasn’t sure about would give a damn. But I wasn’t in that field so no oath for me.

      But Jeff, you are not as rational as you think.

      1. Young,

        I do have faith in one thing- mankind- though sometimes I have my doubts. As one of the greatest atheists who ever lived stated,

        “Two things are infinite: the universe and human stupidity; and I’m not sure about the universe.”

        Einstein

        1. And yet Einstein said, “God does not play dice.”

          He also said something along the line of “God has punished my contempt for authority by making me one.”

          So perhaps you are mistaken about ‘one of the greatest atheists’ as well. His view of the universe was broader and deeper than either of us can know. Don’t pretend that you do understand him to enlist his support for your faith-based religion. That is shallow.

          1. Young,

            All I did was quote Einstein’s comment about human stupidity which he probably paraphrased from Voltaire:

            “The only way to comprehend what mathematicians mean by infinity is to contemplate the extent of human stupidity.”

            Einstein’s remark that god does not play dice with the universe reflects his belief in a “cosmic religion” where God’s presence was evident in the order and rationality of nature and the universe in all its aspects and expressions.”

            His conception of god bears no resemblance to the mythical Judeo-Christian god. None at all.

            1. Jeff– “His conception of god bears no resemblance to the mythical Judeo-Christian god”
              ***
              I never said it did.

              You are trying to find a dispute where none exists. But the very fact that you can say “His conception of god” confirms that even you don’t think he is quite the atheist that you claimed he was to try to assume his mantle.

              I think you say you are an atheist because you think it makes you look cleverer than others and, perhaps, to fit in with some crowd. It is a fashion statement rather than a belief. But it leaves you on a failing limb if you encounter someone who has actually thought about the matter.

              1. Young,

                Atheism is on the rise thanks to the progress of science, but it hardly qualifies as a fashion statement. Americans will elect a Jew for President long before they elect an atheist!

                I suspect most non-believers like yourself opt for agnosticism because it is less offensive to believers. It is hard for believers to argue against agnosticism when they cannot provide proof of god, but they recoil at the atheistic claim that they are delusional for so believing.

                It’s often said that absence of evidence is not evidence of absence, but it is irrational to BELIEVE in the existence of something until there is SOME evidence for it!

                1. “but it is irrational to BELIEVE in the existence of something until there is SOME evidence for it!”

                  What sort of evidence do you seek?

                  1. A spontaneous burning bush and a disembodied heavenly voice. If had a proof, I would be a very conscientious believer!

                    1. Jeff,
                      This is a rather materialist sort of proof. Perhaps you are only looking under the lamppost for your keys. Might there be other ways of sensing and Believing?

                    2. I’m afraid that I am an Empiricist. I must lack an imagination! I favor watching documentaries because they are factually based. The last science fiction entertainment I watched was the original Star Trek when I was a child. I have never watched any science fiction since then unless it was a comedy like “Back to the Future.” I don’t include “2001: A Space Odyssey” in the category of pure fantasy because that movie did not require a complete suspension of my disbelief in the plot. It was very credible, and a meditation on man vs. machine.

                2. Jeff- “but it is irrational to BELIEVE in the existence of something until there is SOME evidence for it!”
                  ***
                  There is an apparently infinite universe. That is evidence of quite a lot, how much we can’t say.

                  Jeff:: “Atheism is on the rise thanks to the progress of science but it hardly qualifies as a fashion statement.”

                  I only think it is a fashion statement for you. A pretense to some extent. I suspect you think it makes you more sophisticated than those around you. It probably does to some, but likely not to those who have thought long about it.

                  1. Young,

                    I give in. You’ve convinced me. From now on, I’ll say I’m agnostic like you. Friends?

            2. “His conception of god bears no resemblance to the mythical Judeo-Christian god. None at all.”

              We have very different conceptions of God. Einstein’s conception fits Him, in part, too, as through a glass, darkly.

              1. Prairie,

                I’m not getting what you are insinuating about Einstein.

                Is it not probable that your belief in God resulted from it being inculcated in you from your childhood? Would your life be so different- would you be hopelessly despondent- were you to discover that there is no God? Isn’t your own creation in the form of your children and your own good works for your fellow man enough to sustain you? Haven’t you found enough meaning in your life as a human being on earth without having to look for meaning in the supernatural?

                You only live once, but if you live it right, once is enough!

                1. “You only live once, but if you live it right, once is enough!”

                  Now you are drawing on Frank Sinatra for your wise sayings. It’s silly. But fashionable.

                  1. Did the Chairman of the Board say that? I just Googled it, and Mae West is given the attribution. Sounds like something she would say!

                    1. It sounds like Mar West could have done; she was so clever. If so Sinatra stole it I believe. I like Mar West but never cared for Sinatra.

                    2. She was quite risqué. In a film late in her career, she was introduced to a rather tall man. When she asked how tall he was, he answered 6 foot 7 inches. She invited him into her bedroom saying, “Never mind the 6 feet; let’s talk about the 7 inches.”

                2. Jeff,
                  “Einstein’s remark that god does not play dice with the universe reflects his belief in a “cosmic religion” where God’s presence was evident in the order and rationality of nature and the universe in all its aspects and expressions.””

                  I agree.

                  “Isn’t your own creation in the form of your children and your own good works for your fellow man enough to sustain you?”
                  No.

                  “Haven’t you found enough meaning in your life as a human being on earth without having to look for meaning in the supernatural?”

                  No. And, “meaning in the supernatural”–that’s not quite it. I suppose you could say ‘supernatural’, but He is not at all in the same category as what is explored in the series Supernatural.

                  1. I have not seen this Supernatural series of which you speak. I like old classic movies, and some newer ones.

                    I guess I am a bit more curious than you. I am not content to accept the beliefs of man’s existence of pre-Enlightenment men.

                    I believe in the Scientific Method. And the scientists are not looking for answers in the New Testament or the Pentateuch. They are launching the James Webb Space telescope this year and upgrading the Large Hadron Collider at CERN. This is the frontier of knowledge which explains our existence.

                    There is no meaning to existence except whatever mankind endows it. I find meaning just in our correspondence.

                    1. Jeff,
                      “And the scientists are not looking for answers in the New Testament or the Pentateuch.”

                      Thank goodness! That’s not the purpose of science or the Bible.

                      “This is the frontier of knowledge which explains our existence.”

                      That’s the how.

                      “There is no meaning to existence except whatever mankind endows it.”
                      That is a cryptic comment. I am curious if that was intended. 😉

                      I agree with your statement in many ways. Does that harken to Viktor Frankl’s Man’s Search for Meaning? Or James’ ‘Faith without works is dead”? Or even Warren’s The Purpose Driven Life?

                      Yet, I find myself disagreeing that there is ‘no meaning’ to existence outside whatever mankind intends. From whence did the desire to make meaning come? Words have meaning and God spoke the Universe into existence.

                      “I find meaning just in our correspondence.”
                      I am glad. Me, too. It is the little things. 🙂

                    2. I’m not familiar with those book you reference. I’d like to believe that there is life after death, but I just can’t make myself believe it. I had to go through the formalities of religion as a teenager. I can’t explain why I grew out of it. Nor, probably, can you explain why you didn’t. I am what I am for better or worse. If you need faith, I don’t begrudge you.

                      I don’t go around like Richard Dawkins trying to deprogram religious people. I admire the very devout in their sacrifice and commitment to their beliefs. I couldn’t do it. By nature, I am skeptical of everything which is why I saw through Trump from the moment he uttered, “people are saying” to back up his gross exaggerations or outright lies. Because of my insistence on demonstrable evidence in order to believe in something, I instinctively recoiled at Trump’s “used car salesman” palaver. It went in one ear and out the other.

        2. As for the universe, it is impossible for us to imagine it being infinite and impossible for us to imagine it not being infinite. Try it.

          As I said, it isn’t rational to be too sure about any of these things. You don’t know there isn’t a god and I don’t know that there is. The difference is, I don’t care. I am comfortable with uncertainty. There is so much of it. Apollo will do for me in the meanwhile…just for the fun of it.

          1. Well, then, you are not a Christian. You are a non-believer. I congratulate you.

            Because science has yet to explain why there is existence, I’ll grant you there is a mystery to be solved. Like the ancients who invented a multitude of gods to explain the inexplicable natural forces around them, I’ll allow that we can posit a Creator to explain the impetus to the process of Cosmic Inflation which preceded the Big Bang. Before 10(-32 power) seconds, I am an agnostic. After that, quantum physics has a theory to explain the evolution of our Universe.

            1. Jeff “After that, quantum physics has a theory to explain the evolution of our Universe.”
              ***
              Not really. It hasn’t pulled gravity in yet and that is a pretty big deal.

              1. True, but once science figures out quantum gravity, then we may have a theory of everything! I hope I live long enough.

      2. “That idea [atheism] is as faith based as believing there is one.”

        Perhaps in some cases; but not in all. There is such a thing as a *rational* approach to atheism, which amounts to: I have considered the arguments for and against theism. I have considered the evidence presented. On that basis, I reject theism.

        “You can no more demonstrate that there isn’t a god . . .”

        You are reversing the onus of proof. The burden of proof is on he who asserts the positive. Atheism is a *negative* position, as in: a-ghostism, a-goblinism.

    2. “The Holocaust, for instance, was perpetrated by Christian observing soldiers and policemen from Germany, Austria, Poland, Lithuania, Ukraine and Romania as well as murderous Christian townsfolk under their auspices.”

      “Your fans are gospel folk, Johnny. They’re Christians, and they don’t wanna hear you singing to a bunch of murderers and rapists, tryin’ to cheer ’em up.” The man in black responds without missing a beat: “Then they ain’t Christians.” ~Walk the Line

      1. Prairie Rose,

        I enjoyed that movie. Phoenix is one of my favorite actors along with Daniel Day Lewis and Morgan Freeman.

          1. Prairie,

            I’m really grateful that you shared that article with me! Thanks.

            I am a fan of Hitchens obviously, and it’s a pity hr isn’t alive to get his take on Trump though I have a pretty good idea what he would have said!

            Without getting too personal, suffice it to say that “I’m Experienced” or to put it another way, “I’ve been on the Bus.” I have seen a glimpse of the ineffable. I do think that there is more to life than meets the eye. Google “quantum entanglement,” and you will understand what I mean.

            But having said all that, I don’t believe my prayers will be heard and answered. Ok?

    3. More Christians have been persecuted and murdered than Jews. Christian are the only ones being persecuted and murdered today. It is a sick perverted lie as they all are that Christians killed Jews in WW2. You can’t have a religion in fascists and communist countries. The ADL has caused more destruction to the country than almost any other government funded group in the USA. You’re welcome the Christian Nation od the USA stopped WW2. You are insanely ungrateful. Good thing the ADL and its lunatic followers have gotten rid of Christian values in the USA and the its destruction of natural law because that means next time there will be no one there for you.

      1. Wakeup,

        This is so demented. I only wish Turley would tell you how messed up you are. Please ignore me.

  3. “Biden expressly discarded with the constitutional considerations in favor of political expediency . . .”

    The Obama retreads running the White House have the mindset of a sociopath: Can we get away with it? Will we be caught?

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