OPINION:
This might be reminiscent of an old Johnny Carson-Ed McMahon comedy routine—if it weren’t so unfunny.
Q: How lawless is the Biden administration?
A: It’s so lawless that the Supreme Court delivered two sharp rebukes last week alone, two days apart—in one instance ordering the administration to stop doing something, and in the other case, to resume doing something it shouldn’t have stopped doing.
On Aug. 26, a 6-3 majority told President Joe Biden that he had no authority to grant unilaterally an extension of the Centers for Disease Control and Prevention’s eviction moratorium.
The moratorium—aimed at keeping people from being displaced from their homes if they couldn’t pay their mortgages or rents due to coronavirus-related joblessness—had lapsed on July 31. Mr. Biden then authorized the CDC to extend the moratorium through Oct. 3, even though it had been struck down by the justices in a June 29 ruling—although they allowed it to remain in place until its scheduled expiration. (We’re unclear on how something unconstitutional can nonetheless be allowed to stand, even for 32 days, but we’ll save that discussion for another time.)
Mr. Biden as much as admitted he was flouting the Constitution and the rule of law when, on Aug. 3, he brazenly admitted, “The bulk of the constitutional scholars say it’s not likely to pass constitutional muster. But at a minimum, by the time it gets litigated, it will probably give some additional time while we’re getting that $45 billion [in federal coronavirus relief funds] out to people who are in fact behind in the rent and don’t have the money.”
The implication that it might be litigated endlessly as a dilatory tactic might have been what forced the justices to act in what for them was rather short order in slapping the Biden diktat down.
As an aside, former President Donald Trump shares some of the blame here since his administration originally conferred upon the CDC authority that Congress never gave it.
The moratorium—however well-intended, since no one wants to see people thrown out on the street—nonetheless conscripted landlords as its agents against their wills.
According to Curt Levey, president of the Committee for Justice, “[L]andlords big and small have already gone more than a year facing unpaid rent that is costing them $14 [billion] to $19 billion each month.”
How are they supposed to pay their property-tax bills without rental income, much less make their mortgage payments? Mr. Biden doesn’t know, didn’t care, or both.
That Supreme Court rebuke came just two days after the justices told Mr. Biden on Aug. 24 that his administration could not end the Trump administration’s “Remain in Mexico” policy for asylum seekers and would-be illegal aliens apprehended at the southern border.
Again on a 6-3 vote, the justices upheld a lower court ruling favoring Texas and Missouri, which had challenged the administration’s decision to end the Migrant Protection Protocols.
The policy had significantly reduced the torrent of illegals flooding across the border. Still, the Biden administration argued—implausibly and falsely—that being required to reinstate the program would result in “irreparable harm” and “threaten to create a diplomatic and humanitarian crisis.” No, the truly irreparable harm is to national sovereignty from the president’s open-borders policies, which are what’s causing a genuine humanitarian crisis.
The lower court had found that Mr. Biden had violated the Administrative Procedures Act when he ended the Trump program. It said the administration must make a “good-faith effort” to reimplement the program, which it had suspended almost immediately upon taking office in January, triggering a sharp spike in illegal immigration.
The high court wrote that the administration had “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.”
However, perhaps the most disturbing aspect of both rulings was that, in dissenting, the three liberal activist justices—Stephen Breyer, Sonia Sotomayor, and Elena Kagan—were willing to allow the president to flout the Constitution and the law. Shame on them.
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