The Centers for Disease Control, at the behest of President Joe Biden, has issued a new eviction moratorium to help keep people in their homes as the Delta variant spreads across the country. The order will almost certainly be struck down by the conservative-controlled Supreme Court. In a ruling on the previous moratorium in June, alleged attempted rapist Brett Kavanaugh indicated that the CDC wildly overstepped its statutory authority by issuing a ban on evictions. Kavanaugh provided a fifth vote to uphold the old moratorium, but only because it was set to expire soon, and he wanted to give Congress time to pass a law allowing it to freeze evictions during a public health crisis.
Congress, predictably, did not act. We can thank moderate Democrats for refusing to do anything to stop a new wave of homelessness, despite the desperate pleas of their progressive colleagues. Representative Cori Bush literally camped out on the steps of the Capitol for three days to highlight the plight of the soon-to-be homeless, but moderates are apparently more worried about being kicked out of a job than about their constituents’ being kicked out of their homes.
Despite being failed by the mass of Congress members, Biden yielded to righteous voices and ordered the CDC to issue a new moratorium.
Unfortunately, it won’t work—much as I wish it would. Already, the new eviction moratorium is being challenged in district court by a group of landlords and real estate interests. And while I believe Kavanaugh to be a liar, my read is that he lies only for his personal benefit. Since he’ll get nothing out of stopping millions of desperate Americans from being evicted from their homes, there’s no reason to think he was lying about his disdain for the CDC’s prior order.
Meanwhile, the Biden administration’s defense is unlikely to hold up. In court papers defending the moratorium, the Department of Justice argued that the new eviction ban is within the government’s statutory powers because it covers only the 80 percent of the country experiencing community spread of the virus, not all of it. That, sadly, is a legally pathetic argument. Kavanaugh will not buy it, and it’s insulting enough to the rest of the court that I could see the Biden administration losing Chief Justice John Roberts and maybe even the three liberal justices as well.
This, I suppose, is exactly the point at which I’m supposed to join the chorus of pundits and chastise Biden for his Trumpian use of executive power and for embracing what is likely an illegal action. The court made itself clear, but the president is going ahead anyway—where have we heard that story before? It would be a perfect, virtue-signaling layup for me to say, “I criticized Trump and now I criticize Biden” because “process matters” and “the ends can’t justify the means.” Then, everybody could bask in the warm glow of my intellectual consistency.
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But I just can’t join in the legal tut-tutting. I come from a tradition in which you sometimes have to violate bad laws—by any means necessary. Sometimes you have to do an illegal thing and get rebuked or arrested doing it to highlight the injustice of the system. Cori Bush was interviewed on the steps of the Capitol, and she said, “If you take an ‘L,’ you take an ‘L,’ but at least you tried.” These are the people I come from.
Lawyers are taught to avoid making value judgments about competing social goods, in a nod to the fact that, in a pluralistic society, different people will value different things. Avoiding the values question is the intellectually safer space, but I think that kind of dispassionate analysis often allows people to miss the point entirely. There is a moral distinction between stubbornly ignoring Supreme Court guidance as a means of preventing people from becoming homeless, versus, say, stubbornly ignoring Supreme Court guidance as a means of continuing to kidnap children at the border. Acting like there is no difference between helping and hurting people cedes a critical part of the argument to those who enjoy hurting people. We have gotten so used to treating human suffering as one policy option among many that the alternative view—suffering is bad and should be opposed by every method available—makes us uncomfortable when we see it in action.
If you want to make an apples-to-apples comparison between the Biden process in this particular instance and the Trump process for four years, let’s remind ourselves of the goals of the Trump administration. Trump ignored court orders or made meritless legal arguments in the face of overwhelming precedent in order to:
- Ban Muslims from the country
- Deport people who were brought to this country as babies
- Reverse international human rights standards for people seeking asylum
- Declare a fake national emergency and steal money from the military to build a wall
- Kidnap children and continue to kidnap children after the courts ordered him to stop
- Enrich his family and his businesses
- Hawk products directly from the White House
- Bribe a foreign government to gather dirt on his political rival
- Claim “absolute immunity” for all executive actions and refuse to allow his administration to comply with congressional oversight
- Obstruct investigations in two separate impeachment inquires
- Fire the director of the FBI investigating him
- Dissuade ethnic minorities from filling out the Census
- Promise and deliver pardons to his cronies who lied to the government to protect him
- Launch a failed coup d’état.
That list isn’t even exhaustive; it’s just what I remember being sufficiently pissed off to write about. Trump violated or manipulated the law on a nearly daily basis for four years—and was held accountable for none of it. Precisely zero of these grave violations of our legal norms have resulted in any prosecution or punishment whatsoever.
But now the pundit class (a class of people not in danger of losing their homes) is shouting that Biden can’t overstep the “normal” bounds of executive action to keep people in their homes for an extra couple of months—because of the rule of law. Trump went through three different Muslim bans until he eventually found a Muslim ban that the court would support, but Biden can’t try a different version of an eviction moratorium because the court probably won’t go for it.
I appreciate that we all want Biden to be “better than that.” The Trump administration showed that unchecked executive power can be pretty bad (though it’s worth noting that Biden expects to be checked, while Trump expected his hand-picked Supreme Court justices to do his bidding). It would be great if Biden could lay that power to the side and in so doing shame future Republican presidents into executive restraint, but I’m pretty sure that a person facing the reality of living on the street would tell us to take our Aaron Sorkin screenplay and shove it right up our asses.
What Biden has done in issuing this eviction moratorium is an act of civil disobedience. He and his administration know the law. They know the consequences. They know they’re buying only a little more time for the people they’re trying to help, and they know that, when the court smacks them down, its ruling will be widely framed as a devastating rebuke by a mainstream media class desperate to show that it can be critical of “both sides.” The Biden administration is going to take an “L.”
Despite that, there are practical benefits from engaging in this form of disobedience, even if it results in a court defeat. It brings more attention to the issue, and homelessness is an issue that always deserves more attention. Biden has said that he’s hoping to buy states enough time to dispense anti-eviction funds. Indeed, given Congress’s failure to act, some states may pass or strengthen their own eviction moratoriums. And even if they don’t, there are surely some families who will be able to use the extra time to procure some other option for basic shelter. Progressives pushed Biden to make this move because the extension might actually help people, even if it comes at the cost of some of Biden’s institutional reputation.
If only Robert Mueller had been willing to make the same reputational sacrifice in the pursuit of justice. If only Merrick Garland’s Justice Department would risk the same kind of media rebuke in the prosecution of the powerful. We have seen what happens when institutionalists protect their institutions instead of seeking justice and found only that it benefits Republicans who have no respect for institutions. I welcome the attempt to try something different, for once.
I’m out of pearls to clutch. Moderate Democrats in Congress (and seemingly the entire Republican Party) are willing to let people be kicked out onto the street. If all Biden can do is buy these people a few extra weeks of shelter, then he must. If all that costs him is some bad press from the “both sides” brigades, that is a small price to pay.
I have what the scientists would call a “double standard.” If the current occupant of the White House is trying to help people, I generally think they should do what they can. If the occupant is trying to hurt people, I think they should be stopped. I suppose I missed the day in law school where we were supposed to turn in our moral compasses and learn that helping people and hurting people must be treated as objectively the same thing. I was probably out protesting some injustice.
