Typically, a president wouldn’t flatly admit that they pushed an illegal order (as already indicated by the Supreme Court even as Justice Kavanaugh left the door open) in order to abuse the court system and get what they want before there’s time to stop them. Yet, here we are, with Joe Biden doing just that.
When asked if his order was constitutional yesterday, his response just dug the hole deeper.
Why is the eviction moratorium constitutional, I asked the president. Biden told me "I can't guarantee you the court won’t rule that we don't have that authority but at least we'll have the ability to, if we have to appeal, to keep this going for a month-at least. I hope longer." pic.twitter.com/sBTOLmbPDV
— Philip Melanchthon Wegmann (@PhilipWegmann) August 5, 2021
Take a trip with me, if you will. The year is 2020 and President Trump has just ordered the ending of the DACA program again, in the exact same way, even after the Supreme Court ruled he couldn’t do that. He then orders the immediate deportation of every so-called dreamer in the country. When asked about the constitutionality of such an order and defying the courts, Trump responds, “It’ll take time for those suckers on the Supreme Court to stop me and in the meantime, we’ll hopefully deport them all.”
That’s exactly what Biden is doing here. He knows he’s been told what he’s doing is illegal, but he’s doing it anyway with the expressed intent to gum up the court system and still get what he wants. If that’s not a constitutional crisis — a favorite phrase of the Trump era — I’m not sure what is. What Biden said there is how dictators speak. It’s an abuse of the system that goes further than even anything Barack Obama did.
The real question is what will anyone do about it? We certainly can’t count on support from the establishment Republicans to push back on this. For the most part, they’ve been silent (though, Mitch McConnell did finally comment yesterday). I suspect the meekness of the response from many GOP members is to preserve their precious infrastructure deal, which is just an insane notion when you think about it.
Trump makes a mean tweet and Romney is on Twitter faster than a fat kid gets to the table after the dinner bell rings. But Joe Biden blows up the foundation of our constitutional republic while admitting he knows it's illegal and Romney is nowhere to be found. Weird, right? https://t.co/2f6Cj10vJK
— Bonchie (@bonchieredstate) August 5, 2021
That really just leaves the courts. One challenge has already been filed. Hopefully, the District Court will put an injunction in place on the moratorium, allowing it to not hurt any more property owners while things are litigated further.
Even still, more must be done. The Supreme Court can’t act outside its own power, but it should use every tool in the toolbox to make sure this doesn’t happen again. I’m told courts typically frown upon process abuse and there need to be real consequences here to the extent that anything can truly be impactful. Various sanctions, scathing language in a decision that sets a real precedent, possible ordering of restitution, and whatever else is on the table. Break the glass and press the button. This is not the time for John Roberts to “protect the institution” via some extremely narrow ruling.
If Biden successfully runs out the clock having admitted he blatantly abused the court system to do something illegal and the courts decide the issue is moot, then this will just happen again. Nothing about that would be good for the rule of law or the country as a whole.