The Biden administration is playing into a trap of their side’s own-making—and smart Republicans would be wise to remember this moment as a precedent for a future vindication of the Constitution’s separation of powers.
As panic set in over the expiration of the pandemic-related eviction moratorium, Democrats scrambled to protect a core constituency’s expiring benefit. On June 29, the Supreme Court, in the 5-4 “shadow docket” decision of Alabama Association of Realtors, determined that the extension of the pandemic-related eviction moratorium would expire. Justice Brett Kavanaugh expressed that the Court would tolerate a unilateral extension of the moratorium by the executive branch this far but no further than the end of July, absent ordinary legislation addressing the matter. As if caught by surprise by the Supreme Court’s ruling nearly five weeks ago, Democrats in Congress, particularly the House “Squad,” began raising a ruckus over the past seven days to use whatever tools they have at their disposal to extend the moratorium.
But Congress, under short notice and with little institutional willingness to take up this matter, was a dead end. Concerned congressional Democrats then began pressing the Biden administration to search for any legal language, no matter how attenuated, to continue the moratorium. Despite frequent assurances that the CDC could not construe existing legislation to unilaterally incorporate a further extension of the eviction moratorium, the Biden administration earlier this week announced the grounds on which the eviction moratorium would continue. Even as the administration conceded it had no statutory ground to continue “new, targeted eviction moratoriums,” it announced it would press on in defiance of the Court’s June 29 ruling.
National Review‘s Andrew McCarthy ably explained the specious reasoning given by the Biden administration to continue the eviction moratorium. McCarthy also inveighed against the damage the Biden administration is doing to the separation of powers: “[I]n blatant violation of his solemn duty to execute the laws faithfully, Biden has usurped Congress’s legislative authority and declared the power to legislate.”
But what even an incisive thinker such as McCarthy misses is that the surest defense of the separation of powers is not tut-tutting about structural protections of liberty, even if those protections are valuable. Rather, the surest defense is what constitutional scholar Hadley Arkes calls the operationalizing in constitutional government of the Golden Rule. As Arkes has explained, “it puts the question of what the principle is behind one’s position and whether he would be willing to honor the same principle when it cuts against his interests.”
A Biden administration that flagrantly defies an on-point ruling of the Supreme Court opens itself to the precedential invocation of that same principle when a future Republican administration seeks to downplay a ruling of the Court by sustaining its own understanding of constitutionality, as per its branch’s independent interpretive prerogative.
The shock that may come, particularly to conservative readers, is that in principle what the Biden administration did in defiance of the Court on the eviction moratorium is not unconstitutional. For example, Lincoln understood, as in Dred Scott, that a decision in a case is only strictly binding as it applies to the named litigants to a specific lawsuit. A broad principle applicable to the other branches need not be gleaned from any one decision of the Court.
Constitutionality, then, is better understood as an ongoing conversation between the branches, with constitutional determination much more fluid and distilled based on the actions and reactions of all the branches based on factors such as institutional competency and willingness to act. What many Americans sense but may not be able to articulate is that we are living in a flawed experiment in self-government, where judicial opinions have the force of upending the rules by which we govern ourselves. A Biden administration that has chosen to re-establish this understanding of constitutionality—arguably one much more in keeping with how the Founders envisioned the branches’ notion of ambition counteracting ambition—could perform a valuable long-term service toward restoring notions of republican self-rule.
That said, the Biden administration foolishly picked a partisan cause on which to mount this particular case. While in principle constitutional to push back on a decision of the Court, prudentially Democrats may rue this decision soon. Conservatives need not employ great powers of imagination to envision a world where a Republican president bucks the Court and realizes substantive priorities rendered moot by that eminent tribunal. Recall not too long ago, in New York v. Department of Commerce, when the Court held that the Trump administration had improper motives for including a question about citizenship on the U.S. census. Or even more significantly, when the Court in Bostock v. Clayton County read into the Civil Rights Act of 1964 an understanding of “sex” utterly detached from the original public meaning of the Act’s drafters. Compared with the eviction moratorium decision that featured direct language with determinative timetables, these Trump-era decisions should have invited greater executive deliberation on prudential applicability.
Conservatives ought to have long memories and at least remain open to creative strategies for vindicating the logic underlying the separation of powers, lest they be subject to a one-way ratchet of power used only against their substantive priorities. Perhaps the Biden administration believes it can play dumb long enough for a political solution to the eviction moratorium to emerge. However, the administration has sprung a trap of its own making by viewing decisions of the Court as only final when it also views them as correct. Conservatives, take note and prepare for when a future Republican administration can use this moment as precedent to defend the principles of republican self-government—as Lincoln would have urged.
This essay, originally published at Newsweek here, is reprinted with permission.