The Washington Post reports that progressive Democrats have “erupt[ed] in fury” at the Biden Administration because the Centers for Disease Control did not renew its moratorium on evictions. The Administration’s critics may be right on the policy, but they are wrong on the law. The difference matters.
The CDC imposed the moratorium as a public health measure, worrying that a wave of evictions resulting from the economic devastation of the early pandemic would trigger community spread of the coronavirus. The Supreme Court has indicated the executive branch has no further authority. The CDC has no free-ranging economic power, nor should we want it to. The Biden Administration argues, instead, that it needs Congress to act. That is an admirable and refreshing defense of legislative authority coming from the executive branch.
Representative Cori Bush, a Missouri Democrat who has spent nights on the Capitol steps to protest the moratorium’s end, has written movingly of her own experience living in a car with her young children. That is a case for Congress to act, not for the CDC to do so. Bush has called on the CDC to extend the moratorium or for Congress to pass legislation. Constitutionally, those options are not interchangeable. One is grounded in deliberate self-government, the other in executive fiat.
It may be the case that intransigent Republicans refuse to act even on the basis of reasonable compromise. That does not mean the president should. When presidents intervene to solve problems with unilateral authority, they license exactly the kind of no-consequences legislative theater that is alleged to be the problem here: Members of Congress can play their stage roles on the understanding that the president will take care of the actual business at hand.
The recent memory of the Trump Administration should remind progressives of the dangers of executive authority. They learned the hard way that executive fiats can be undone in a heartbeat when a new president, equally equipped with pen and phone, takes office. Piling up policies during the brief interval when progressives hold the conch would be pyrrhic and transient. Moreover, the same progressives are correctly defending the right to vote. One hopes their motive is to defend self-government, not that they believe policy victories would result.
Progressives may respond that they have tried good faith, only to be rebuffed. There may be truth to that, just as there is certainly truth to the fact that public opinion is more subtle and variegated than they acknowledge. All these Republicans got elected, after all. The issue may also be more nuanced than a binary conflict between renters on the one hand and, on the other, wealthy landlords playing the part of Rich Uncle Pennybags. But even assuming they are right, progressives who join their opponents in situational constitutionalism are abandoning constitutionalism itself. Both on principle and for the sake of the policies they prefer, that is a mistake.