By David Harsanyi
Wednesday, August 04, 2021
Joe Biden certainly isn’t the first president to
violate his oath of office, but he might be the first in memory to openly
brag about doing it. As Biden announced a new “eviction moratorium,” he
informed Americans that the “bulk of constitutional scholars” would say the CDC
eviction moratorium is “not likely to pass constitutional muster.”
Not likely? It already failed. In June the
Supreme Court ruled that the CDC had “exceeded its existing statutory
authority” and was obliged to stop. The president admitted as much, noting that
the new moratorium is meant to give the administration time to act on “rental
assistance” before the court again shuts it down. What stops Biden from
stalling and trying a third time? A tenth time? Biden admitted to the media
that he would be circumventing the courts, the law, and his oath of office, in
which he promised, to the best of his ability, to “preserve, protect and defend
the Constitution of the United States,” not to infringe on the property rights
of Americans to placate crackpot socialists in his party.
When asked today about the discrepancy, Jen Psaki
promised, “This is also going to be a temporary solution.” Because, as Article
II, Section 5, apparently states, the executive can make laws irrespective of
Supreme Court rulings, as long he also crosses his heart and promises it’s only
going to be temporary. When pushed further on the matter, Psaki could not
recall the moment when Biden was convinced there was solid legal ground to move
forward. Probably because no such moment exists.
Alexandria Ocasio-Cortez was far more honest, noting that
this was “a huge victory for the power of direct action and not taking no for
an answer.” Not taking no for an answer — in this case, not taking no for an
answer from the Supreme Court — is lawlessness. The process — the sacred norms that
Democrats pretended to care about over the past five years — is irrelevant to
engaging in “direct action” within government. It’s been clear from their
efforts to delegitimize the Supreme Court to their effort to undermine faith in
federalism and countermajoritarian institutions.
None of this is to even speak of the tremendous abuse of
power inherent in the underlying eviction moratorium itself. Biden’s new
19-page order includes draconian penalties, fines, and potential jail time for
violating a concocted “law.” Forget that it’s terrible public policy, it is also, as I noted when it was
first issued by the Trump administration, state-sanctioned theft. At best, such an “emergency”
infringement should be left to state and local municipalities. Does anyone
really believe that the Founders would approve of the CDC — an incompetent
agency tasked with dealing with infectious diseases — retroactively ripping up
millions of legal contracts and unilaterally suspending the property rights of
90 percent of landlords? If it can do that, what can’t it do?
Some have argued that Trump’s reappropriation of funding
for a southern wall or Obama’s power grab on DACA paved the way for this kind
executive abuse. But neither the wall nor DACA policies had yet been adjudicated by
higher courts when they were put into play. Obama had, on numerous occasions,
admitted that he had no constitutional authority to enact amnesty for millions
of Americans by fiat. In 2010, he said, “I am not king. I can’t do these things
just by myself.” The next year he again acknowledged that as president he was
not empowered to “just bypass Congress and change the law myself. . . . That’s
not how a democracy works.” Obama, of course, didn’t believe in any such
limitations, and he went ahead with DACA anyway. Yet not even he enacted the executive
action after the Supreme Court ruled it unconstitutional. That
is unique.
You can imagine what the future looks like once we’ve
normalized the idea that presidents can regurgitate unconstitutional executive
actions as long as the polling is positive. One of the often repeated — and legitimate
— concerns regarding Trump was that he would simply ignore the will of the
Court. That is exactly what Biden is doing right now. Writers at major outlets
such as the Washington Post and CNN are already celebrating this
lawbreaking as a moral good. Democrats will dutifully defend the president,
talk about the purported benefits of the moratorium, and ignore the
unconstitutional manner in which it is implemented. Nancy Pelosi, an alleged
leader of the legislative branch of the American government, pressured Biden to ignore Congress and the courts. Chuck
Schumer celebrated
the decision. And it is highly unlikely that a single Democrat will stand up
and speak up for the rule of law.
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