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.