Biden Should Have Left the Evictions Moratorium to Congress
For four years, the administration of Donald Trump assaulted many political norms and governing institutions, culminating in a literal assault by his supporters on the U.S. Capitol. This was rightly a major focus of Trump’s critics, who hoped and expected that, as president, Joe Biden would protect norms and strengthen institutions, and restore Americans’ faith in them.
Of course, simply removing Trump from the scene could not magically produce the institutional restoration we so desperately need. The structure of today’s politics—the fundraising incentives, the media dynamics, the parties very evenly divided in Congress, the heightened partisanship—make it very tempting to trample on norms in order to get things done. Reinvigorating institutional norms requires active, concerted effort. It often requires compromise. And it requires courage.
Which is what makes President Biden’s Tuesday announcement about the eviction moratorium so disappointing.
To understand why this matters and what the stakes are, it’s important first to separate the policy aim from the means of achieving it. The economic distress and job losses caused by the pandemic have contributed to an estimated 6 million Americans falling behind on rent, and a wave of evictions is expected to follow once an eviction moratorium issued by the federal government last September ends. Preventing, delaying, slowing, or softening the wave of evictions and the potentially disastrous social and economic follow-on effects may well be desirable, wise, and admirable as a policy matter—but like any policy matter, it must be pursued in a way that comports with the Constitution and applicable law.
Unfortunately, that is not what has happened here. Instead, President Biden has compounded a Trumpian instance of norm-busting.
Let’s walk through what happened. The first moratorium on evictions during the pandemic was passed by Congress and enacted in March 2020; it expired in July 2020. After a short gap, the Trump administration moved, on the basis of weak statutory and constitutional authority, to have the CDC issue a new moratorium, which took effect last September. That CDC moratorium was originally supposed to last only through the end of 2020, but it has been extended three times: once by Congress in late December, and then by the Biden CDC in late January and late March. The order was set to expire on July 31.
The question of the legality of the moratorium came before the judiciary, and federal courts in the Sixth Circuit and the D.C. Circuit found that the CDC had overstepped the powers granted it by the relevant statute. In June, the U.S. Supreme Court was asked to step in. The justices decided 5-4 not to intervene, with Justice Brett Kavanaugh spelling out precisely why he supplied the fifth vote to uphold the moratorium: “In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”
Last Thursday—two days before the moratorium ended—the White House issued a reasonable statement regarding the ability of the executive branch to extend the eviction moratorium. Press Secretary Jen Psaki acknowledged that the Supreme Court “has made clear” that the option of executive branch extension of the moratorium, absent explicit legislative authorization from Congress, “is no longer available.”
Congress failed to pass that “clear and specific” legislation, as Speaker Pelosi could not even muster support from the moderate wing of her own Democratic caucus in the House, let alone sway Republicans in the Senate. This led to the strange dynamic of members of Congress protesting outside of the very institution of which they are a part.
July 31 came and went with no congressional action. Faced with the grim possibility of a wave of evictions, and under pressure from his base to take unilateral, presumptively illegal action to renew the moratorium, President Biden could have stuck to his guns, leaving the matter where it belongs: with Congress.
Instead, he had the CDC issue a new, more limited eviction ban applying to “counties experiencing substantial and high levels of community transmission levels” and extending through October 3. There is still no constitutional or statutory authority for this ban, which Biden himself acknowledged as he teased the announcement, saying that “any call for a moratorium based on the Supreme Court’s recent decision is likely to face obstacles.” He also made this strange admission:
One, I’ve sought out constitutional scholars to determine . . . what could [the CDC] do that was most likely to pass muster, constitutionally. The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster. . . . But there are several key scholars who think that it may and it’s worth the effort. But the present—you could not—the Court has already ruled on the present eviction moratorium.
The president seems to be admitting either that he is knowingly taking action that is unconstitutional, or that he thinks the new version of the eviction ban is different enough from the old one to somehow be more constitutionally permissible. The latter possibility is unconvincing; the former is troubling.
So what will happen now?
The new eviction ban will inevitably make its way through the courts, and if it reaches the Supreme Court it will almost certainly be struck down by a 5-4 vote as an unlawful exercise of executive power.
And this is where we can return to the broader question of norms and institutions, and the ramifications of President Biden’s action.
His decision will further erode the Supreme Court’s legitimacy. The president has buoyed his base’s hopes with a policy win that will prove fleeting, and when his base is stripped of that win by the Supreme Court, they will conclude that it’s the Supreme Court that is their problem. The Court’s legitimacy will be weakened. Don’t be surprised if calls for court packing and other norm-breaking proposals resume.
And the president’s action only worsens the unfortunate buck-passing dynamic among the branches of government—especially Congress’s eagerness to cede legislative authority to the executive branch. A president who is courageously committed to institutional norms would not assist Congress in its dereliction of duty. The disappearance of congressional strength atrophies our self-governing muscles. It cuts against piecemeal compromise, and it exacerbates fear of the other side. We’ve forgotten how to debate and work with one another—in the public square and in Congress. With his action this week, President Biden is not pushing back against this worrisome erosion of our self-governing capacities; he’s adding to it.