President Biden's extension of the eviction moratorium is unconstitutional and he knows it

On Tuesday, the President of the United States stood before the nation and announced that he intended to break the law.

Up until that point, Joe Biden had confirmed repeatedly that he did not possess the constitutional authority to extend the eviction moratorium that the Center for Disease Control promulgated last year under President Trump, and that the CDC had renewed back in June. Asked on Monday whether the White House could restore the policy, Gene Sperling told reporters that “the President has “not only kicked the tires, he has double, triple, quadruple checked,” and he has found each time that he cannot. Moreover, Sperling confirmed, Biden had “asked the CDC to look at whether you could even do targeted eviction moratorium – that just went to the counties that have higher rates – and they, as well, have been unable to find the legal authority...” Speaking at his press conference Tuesday, Biden reiterated these findings. “The bulk of the constitutional scholarship,” Biden conceded, “says it’s not likely to pass constitutional muster,” as, he noted, did the Supreme Court, which ruled in June that the scheme “exceeded its existing statutory authority” and could not be extended without explicit congressional approval. But, Biden said, he had decided he was going to do it anyway – if just to exploit the time it would take before the judicial branch struck it down.

Presidents abuse executive power

Thus did the president who was elected to restore “norms” to Washington, D.C. engage in the most egregious act of executive usurpation in decades – perhaps longer.

Most modern presidents push the limits of their office. But none have done so quite as brazenly as this. George W. Bush signed the McCain-Feingold campaign finance law while suspecting (correctly, it turned out) that large parts of it were unconstitutional. Barack Obama emphatically told Americans that he couldn’t unilaterally implement the DREAM Act because he wasn’t a “king” or an “emperor,” and then did it anyway. And, having been rebuffed in his repeated requests to Congress, Donald Trump stole emergency funds to pay for his border wall.

None of them, however, saw fit to defy the Supreme Court. By signing McCain-Feingold, George W. Bush was putting his own views aside and deferring to existing Supreme Court precedent and to the will of Congress. By issuing DACA, Barack Obama was contradicting himself, but in an area that had not yet been litigated. And, though he ignored Congress’s will, Donald Trump had insisted from the start that he had the power to use emergency funds for his wall, and was able to point to vagueness of the underlying statute and to the courts’ typical unwillingness to determine whether a declared “emergency” is legitimate.

Biden has no such excuses. He knows he’s violating his oath -- and he doesn’t care.

Explaining away Biden’s decision at CNN, Stephen Collinson suggested that the president had merely “improvised with executive power to shield constituencies from consequences of a malfunctioning political system.”

This is unforgivable sophistry. Unless Collinson believes that it is a crisis when he does not get his own way, nothing that has happened in this long saga suggests that there is anything wrong with our political system whatsoever. Having been asked for a ruling, the Supreme Court explained the limits and handed the broader question to Congress. And, in response, Congress decided to do nothing -- a decision, it bears repeating, that it is entirely within its power to make.

All too often, political obsessives cast congressional inaction as a warrant for presidential overreach. “If Congress won’t act,” Barack Obama famously said, “I will.”

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But, of course, this is not how the American system of government works. A decade ago, Congress declined to pass the DREAM Act. And that was fine. Two years ago, Congress declined to appropriate money for Donald Trump’s border wall.

And that was fine. In July, Congress declined to extend the eviction moratorium. That was fine, too. If, every time Congress declined to do something the president was deemed empowered to do it anyway, we wouldn’t need a Congress at all.

Constitutionally, those decisions should have been the end of the matter. Article I -- note that it’s the first article in the series, because Congress is the most powerful branch -- reads, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” It does not contain a subsequent Cares Too Much Clause, permitting the executive branch to override it when it thinks that the issue at hand is simply too important, nor does it feature an Obstruction Clause that can be appealed to if a given president believes that lawmakers within the other party are acting unfairly towards him. American presidents are entirely within their rights to make demands of Congress, and Congress is entirely with its rights to say “No.” The alternative is not compassion; it is dictatorship.

Limiting executive branch overreach

In the coming years, lawmakers who have grown alarmed by the imperialism of the executive branch should make it their business to search each and every law on the books with a view to removing any ambiguities or overbroad grants of power. As a result of the Great Depression, two World Wars, the Cold War, the attacks of September 11th, and COVID-19, the U.S. Code is riddled with emergency-specific statutes that contain capacious references to “The secretary shall” or “In the judgement of the Director” and that farm out roles that were traditionally played by lawmakers to agencies or to the president himself.

While usually well-intentioned, this trend has led to a situation in which the executive branch can almost always find an obscure power buried somewhere for use when Congress refuses to play ball. If Congress is to be restored to its rightful position, its first step must be to close off those paths forever.

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Writing in Federalist 47, the author of the Constitution, James Madison, submitted that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.” On Tuesday, President Biden embraced that tyranny. It will fall to the other branches – and to the People – to correct course.

Charles C.W. Cooke (@charlescwcooke) is a senior writer for National Review.

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This article originally appeared on USA TODAY: Eviction moratorium: Biden's tyranny should alarm lawmakers