President Joe Biden’s temporary ban on evictions is likely illegal. He knows that. He said so himself after many scholars advised him the ban would not pass constitutional scrutiny. Biden’s decision also came just days after his administration stressed that it had no legal authority to extend a previous evictions moratorium that ended over the weekend. But he went ahead with the new ban anyway. The reckless move elevated doing what’s easy over doing what’s right. And that’s a terrible way to govern.
Last year, the Centers for Disease Control and Prevention banned evictions, hoping to shelter renters from COVID-induced government lockdowns and the resulting high unemployment. The ban faced legal challenge, and at the end of June, the U.S. Supreme Court voted 5-4 to keep the moratorium. But Justice Brett Kavanaugh wrote that he reluctantly voted with the majority only because the ban would end in a few weeks anyway. He said the CDC had exceeded its authority, and that Congress would have to extend any eviction ban. In other words, the Biden administration and the CDC could not extend the ban on their own.
Late last week, Biden encouraged Democrats in Congress to pass a new eviction ban. But they balked at the president’s last-minute Hail Mary, saying the president had left them too little time to build enough support for the idea. Angry congressional Democrats publicly blamed Biden for letting the ban lapse. On Tuesday, the president buckled to the intense pressure from his own party and imposed a new, 60-day ban on evictions in areas hit hard by the delta variant — about 90 percent of the country. But he wasn’t confident the ban would hold up.
“The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster,” Biden told reporters and later added, “but at a minimum, by the time it gets litigated, it will probably give some additional time while we are getting that $45 billion (in federal aid) out to people who are in fact behind on their rent.”
No one wants to see millions of people get evicted during a pandemic. But no matter how righteous the cause, this kind of legally suspect maneuvering undermines faith in the process. The country has a Constitution and a Supreme Court for good reason. Neither of them should be treated like an inconvenience or abused just to buy time.
Some laws are fuzzier than others. Good-faith efforts to clarify those gray areas are fine. But issuing an evictions ban knowing what the Supreme Court had said just a few weeks earlier — on a matter that could have been remedied in other ways — is indefensible.
Biden isn’t alone in engaging in these antics. We’ve criticized Congress, Gov. Ron DeSantis, Attorney General Ashley Moody and the Florida Legislature for making similar legally suspect decisions. But wrong is wrong, no matter the player.
Too many politicians think it’s fine to take unconstitutional positions to play to their base. It’s not.
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