By Rich Lowry
Friday, August 06, 2021
Is a president of the United States flagrantly defying
the Constitution an authoritarian act? A threat to democracy? Something
that at least should be discouraged or frowned upon?
Judging by the reaction of Democrats and center-left
commentators to the lawless last-minute decision of President Joe Biden’s CDC
to extend an eviction moratorium sure to be struck down in the courts, the
answer is emphatically “no.”
At the same time that we are constantly being told that,
say, a Texas election bill to prohibit drive-thru voting or Tucker Carlson’s
latest monologue represents dire democratic backsliding, almost none of Biden’s
allies are raising a peep against a measure that represents exactly the sort of
high-handed unilateral rule practiced by authoritarians everywhere.
Indeed, Biden’s handiwork is being celebrated. What can
he do as follow-up? Suspend habeas corpus? Quarter troops in people’s homes?
Biden’s move is of a piece with similar executive power
grabs by his immediate predecessors. That doesn’t make it any better; in fact,
it makes it worse. It means that executive lawlessness is becoming an ingrained
part of our system. In its own right, Biden’s move is especially egregious.
Trump initially issued an eviction moratorium, and
the Centers for Disease Control and Prevention followed up with its own
moratorium and extensions, even while suffering setbacks in the courts.
There was never any warrant for any of this. The U.S.
Court of Appeals for the Sixth Circuit wrote that the legal theory the
government advanced would “grant the CDC director near-dictatorial power.”
At the Supreme Court, there were four votes for blocking
the moratorium right away. While Brett Kavanaugh wanted to let the moratorium
lapse on its own, he stipulated that “clear and specific congressional
authorization (via new legislation) would be necessary for the CDC to extend
the moratorium past July 31.”
Ah, yes — congressional authorization. What a
groundbreaking concept.
This is how American democracy is supposed to work — if
you have the votes to pass something through the House and Senate, and the
president signs it, the measure becomes law (assuming it’s not
unconstitutional). If you don’t have the votes, it doesn’t become law.
Given all the discussion lately about how our democracy
may be entering its death throes, one would expect there’d be a renewed
attachment to this part of the democratic process.
Even the White House briefly seemed on board. “In light
of the Supreme Court’s ruling,” White House press secretary Jen Psaki said last
week, “the president calls on Congress to extend the eviction moratorium.”
Then, a funny thing happened: nothing.
According to news reports, roughly a dozen of House
speaker Nancy Pelosi’s own colleagues opposed an extension. So, a majority of
the people’s representatives were against it — democracy had spoken.
That should have been the end of it, especially given
that the White House said it had searched for a legal justification for an
exemption and found none.
When Biden reversed course and had the CDC issue another
extension, he was, incredibly enough, explicit that “the bulk of the
constitutional scholars say it’s not likely to pass constitutional muster.”
It’s not often a president of the United States admits
he’s affirmatively violating his sworn duty to uphold the Constitution, but
Biden did it — and got fulsome praise from congressional leaders of his own
party.
Even though they have custody of the branch of government
that is supposed to pass laws, Chuck Schumer and Pelosi were absolutely
delighted that the head of the executive branch had, once again, effectively
passed one on his own.
The true test of devotion to our system is if public
officials honor it even when it produces unwelcome outcomes, or whether they
try to find extra-legal workarounds. Trump abysmally failed this test after the
last election, and Democrats — as they did under Obama — are showing they are
fine with unconstitutional governance so long as it produces their preferred
results.
Remember that during their next lecture about how to
protect American democracy.
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