What just happened is sobering.
Despite multiple lines of contrary law, the Biden White House federalized state rental laws – by unconstitutional executive authority on July 31. Whether struggling building owners, renting to those unable to pay, can be forced to carry that debt – by a 5-4 Supreme Court decision this year – is settled law. Absent a federal statute, they cannot. Yet in an extraordinary act of executive usurpation, Biden ignored the law – and mandated no evictions. See, e.g., Opinion: The CDC’s eviction moratorium is almost certainly illegal.
Review law and facts. For reasons constitutional and prudential, landlord-tenet law is left to States. Except for federal statutory prerogatives like anti-discrimination, Congress has no enumerated powers here. If states’ rights exist – and if the 10th Amendment means anything – landlord-tenet relations are not a federal matter. To the point, they are not a presidential matter.
States live with different circumstances, conditions, and expectations in this area, which is why they have their own laws, legal standards, practices, protections, and case law. See, e.g., Landlord-Tenant Laws of the US. Only in rarest circumstances could the federal government preempt such longstanding states’ rights – and then only by statute.
In sum, that is what happened last year. An “arguably unprecedented” statute got passed when COVID began. Section 4024 of the 2020 CARES Act provided a temporary moratorium on evictions… for tenants … with federal assistance …” The emergency statute was “designed to alleviate the economic and public health consequences of tenant displacement during the COVID-19 outbreak,” but also represented an “arguably unprecedented action by the federal government in an area of law that, largely, states and localities traditionally govern.”
Lawsuits were immediately filed. See CARES Act Eviction Moratorium.
Fast forward to late June 2021, when the Supreme Court decided a case, Alabama Assn. of Realtors v. HHS, on a 5-4 decision. In that decision, Justice Kavanaugh made clear that no executive extension of Congress’ unusual eviction moratorium would be legal. He made clear that CDC and the White House – recall he was once a White House Counsel – could not temporarily or in any other way extend the statutory moratorium. See SUPREME COURT OF THE UNITED STATES.
The Supreme Court’s ruling was plain. Federal usurpation of state landlord-tenet laws – by an executive extension of the eviction moratorium – would be unconstitutional. The Court presumed Congress would act, or moratorium expires in July, so it did not end it. The ruling was clear.
What else enters this picture? Key facts.
Biden acknowledged that an executive extension – either by CDC or White House – would be facially unconstitutional, so he could not issue one. He pressed Congress to pass a statute, which would extend the prior moratorium. They did not.
That left him in a political quandary. Legally, Biden, his White House Counsel, and every Democrat on the Hill knew an executive extension was illegal – worse, unconstitutional. Incredibly, they did it anyway.
That is where we are. The original federal eviction ban expired on July 31, 2021. Biden decided politics was more important than respecting the law, an ominous turn. He decided to ignore longstanding State and Federal precedent, established legal principles, textual States’ rights, and the US Supreme Court. Even liberal media outlets were somewhat agog. See, CDC announces new eviction ban, despite Supreme Court threat; Biden’s Rebuff to Supreme Court on Eviction Ban Will Backfire; Opinion: The CDC’s eviction moratorium is almost certainly illegal; Brett Kavanaugh’s Eviction Lesson.
All this is more significant than meets the eye. If the Biden White House can knowingly promote a direct slap in the face of the US Supreme Court, brazenly ignore prevailing law, violate presumptive States’ rights, the Constitution’s text, and an express Supreme Court ruling – where are the limits? What are the clear parameters? What will they not do?
As an Assistant Secretary of State for George W. Bush, I saw examples all over the world of rogue, unruly, reprehensible executive authorities – on left and right – willing to violate the law, disparage, intimidate, and ignore their judicial branches, including their Supreme Courts. Never did I imagine a US President ignoring the US Supreme Court on any pretense – let alone knowingly, for crass political gain, in full light of day. Yet, that is what we seem to be seeing.
To be clear, an executive decision – at the top – to do what is presumptively illegal, or worse by Supreme Court precedent unconstitutional, is arresting. That is what appears to have happened. To take such executive action says a great deal more. It betrays a temperament within this White House, a willingness to ignore other institutions of government. It betrays disrespect for the States, the Constitution, the rule of law, and the People. That is sobering.
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