Post-Modern Departmentalism: The New Eviction Moratorium as a Constitutional Moment

Benjamin Slomski is Assistant Professor in Political Science at Ashland University.

On August 3rd, the Centers for Disease Control and Prevention (CDC) issued a new eviction moratorium to last for sixty days in areas with high levels of COVID-19 infections. This new order came after the expiration of a prior nationwide moratorium that the Supreme Court had suggested was constitutionally suspect. The CDC is part of the Department of Health and Human Services and therefore part of the executive branch. As Greg Weiner argues in his recent post, the unilateral imposition of an eviction moratorium by an executive agency usurps the lawmaking function from Congress. After all, the power to regulate interstate commerce is one of the enumerated powers vested in Congress by Article I, Section 8 of the Constitution while the president’s power is limited to the execution of the laws made by Congress. The constitutional problems raised by the moratoriums are of course a different issue from the rightness of such a policy, discussed in compelling and heartbreaking accounts of the nation’s housing problem. The constitutional question arises because what may be a right policy was implemented by the wrong branch.

Besides the specific constitutional question of who has the power to issue such a moratorium, the issuance of a new moratorium raises higher constitutional questions over who has the power to interpret the Constitution. The Biden administration’s decision to issue a new moratorium effectively ignores an existing Supreme Court opinion and suggests that President Biden may recognize a presidential power to defy Supreme Court decisions. At the end of June, a bare majority of the Court declined to invalidate the previous eviction moratorium in Alabama Association of Realtors v. Department of Health and Human Services. Despite allowing the moratorium to stand, however, the limited reasoning disclosed by the Court indicates that it would likely find such a moratorium unconstitutional in the future. Justice Brett Kavanaugh provided the decisive fifth vote and wrote a short concurrence to explain why he declined to strike down the moratorium. Kavanaugh understood the order to be an unconstitutional claim to legislative power and wrote that the CDC “exceeded its existing statutory authority by issuing a nationwide eviction moratorium … In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.” Yet he did not vote to immediately invalidate the prior moratorium because “the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds.” In other words, an eviction moratorium unilaterally dictated by the CDC without legislative authorization was unconstitutional, but because the moratorium would soon expire, prudence made judicial action unnecessary. By issuing a new moratorium that still lacks congressional approval, the CDC essentially thumbed its nose at the Court’s opinion and implicitly appealed to a power for the executive branch to interpret the Constitution independent of the judicial process. The CDC even initially declined to issue a new moratorium due to a perceived lack of legal authorization before deciding to defy the nation’s highest tribunal.

By allowing an agency which serves under him in the executive branch to act contrary to a Supreme Court ruling, President Biden has implicitly suggested a return to an old constitutional tradition known as departmentalism. Departmentalism holds that each branch of the federal government has its own power to interpret the Constitution as it sees fit in order to exercise its powers. The president and Congress cannot restrict the federal judiciary’s power to preserve the functioning of the judicial process, but the Supreme Court cannot bind the president or Congress from carrying out their own constitutional powers under this theory. According to departmentalism, the Court can issue opinions on the executive and legislative powers, but it is up to the president and Congress to decide whether they will be bound by these opinions. In most situations, presidents have recognized the prudence and necessity of deferring to Supreme Court decisions in order to preserve the separation of powers and prevent a constitutional crisis. Richard Nixon complied with the Court’s decision that he must turn over damning tape recordings subpoenaed for the trial of Watergate conspirators; FDR pursued political checks on the judiciary but begrudgingly abided by their decisions that various New Deal programs were unconstitutional. Yet in rare cases in constitutional history, presidents have challenged the ultimate supremacy of the judiciary over the Constitution and advanced a departmentalist theory. In doing so, these presidents recognized that their constitutional power to act upon their own interpretations of the Constitution required them to make public constitutional arguments to justify their actions. The Biden administration’s current appeal to departmentalism breaks with this element of the departmentalist tradition and is “post-modern” in the sense that it assumes the executive can defy a judicial ruling as a matter of will without publicly offering a constitutional interpretation that differs from that of the judiciary. Earlier presidents understood the constitutional power of departmentalism to carry a constitutional responsibility to defend their institutional interpretation of the Constitution in constitutional terms; Biden’s recent actions assume that departmentalism simply depends upon having greater institutional willpower than the judiciary and does not require public justification. At the heart of this assumption is a deeper one that the executive power is not responsible to popular opinion and constitutional forms to control its exercise. Asserting departmentalism without justifying it implies that the exercise of presidential power depends solely upon the will of the individual who holds the office. This denies the constitutional principle that the Constitution exists to preserve republican government and thus makes its institutions dependent on and responsible to the people.

Departmentalism is often summed up by the quote attributed to President Andrew Jackson in response to Chief Justice John Marshall’s decision dealing with the removal of Native Americans in Worcester v. Georgia: “John Marshall has made his decision, now let him enforce it.” This would be an invocation of departmentalism for an ugly purpose, but an invocation of the theory nonetheless. It cannot be proven that Jackson ever said such a thing, and it would not have made sense for him to do so since Marshall’s Worcester decision only ordered action on Georgia’s part and gave no orders which Jackson could disobey. Nevertheless, the alleged Jackson quote points to the fact that the Supreme Court relies on the executive branch to carry out its decisions, giving the president a functional ability to impede the Court’s functions. This puts the president in a uniquely powerful position to defy Court rulings.

Jackson’s actual historical contribution to departmentalism came in his message explaining his veto of the bill renewing the charter of the Bank of the United States. Recognizing that the Supreme Court had previously upheld Congress’ power to incorporate a national bank in McCulloch v. Maryland, Jackson offered his own argument that the current Bank was unconstitutional. Jackson narrowed his argument by accepting McCulloch’s ruling that Congress has the power to create a bank, but argued that the present instantiation of the Bank was an unconstitutional monopoly in its arrangement. Even then, Jackson went further to defend a constitutional power for the president and Congress to defy the Court’s decisions:

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.

Jackson’s argument was that the oath to support the Constitution taken by members of each branch of the federal government vests each with the discretion to interpret the Constitution and to adhere to it as they understand it. As an independent constitutional officer, the president cannot be bound by the interpretation of the Constitution offered by a separate branch of government. Jackson did not merely assert this departmentalist power, but understood that the constitutional interaction of coordinate branches required him to defend his power to defy Court decisions in constitutional terms and to explain his own constitutional interpretation to justify his conclusion that the current bank was unconstitutional.

Jackson, a Democrat, won the battle over the bank against Henry Clay and the rival Whig party, regardless of whatever economic effects it may have later had. A former Whig, however, would be Jackson’s presidential successor in defending departmentalism. Abraham Lincoln most clearly articulated the departmentalist theory before his presidency in response to the Supreme Court’s infamous and incorrect decision in Dred Scott v. Sandford that African Americans were not US citizens and that the Missouri Compromise was unconstitutional. In one of his greatest speeches, Lincoln argued on June 26, 1857 in Springfield that the Court had made the wrong decision in Dred Scott. Lincoln eloquently offered one of the most thorough expositions of departmentalism and his words are worth quoting at length:

We believe … in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. …

Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.

If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.

But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country.

Lincoln quoted Jackson to support his point. Lincoln’s position was that the rule of law requires Supreme Court decisions to be binding on the parties in a particular case. The parties in a legal dispute are not free to disobey a direct order from the Supreme Court but must comply with the ruling if the nation is to avoid collapse into anarchy where each individual picks and chooses which laws to follow. Even though Court decisions are binding in the particular case, however, they do not necessarily have to be accepted by the people and the other branches of government as constitutional precedents that should govern constitutional interpretation in later cases.

For Lincoln, whether or not a Supreme Court decision should be accepted by the nation as a binding constitutional precedent depends on whether it meets several criteria. If a decision is unanimous, lacks partisan bias, accords with historical facts and practice, and meets legal expectation, or is reaffirmed throughout the years, then it should be accepted as a binding interpretation of the Constitution. Whenever a decision fails to meet the varied and demanding criteria listed by Lincoln, then constitutional officers are free to disagree with the Court and act in accord with their own constitutional interpretation.

Lincoln stood by his departmentalism in his presidency and reiterated his argument in his First Inaugural Address. He stated that:

I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration, in all parallel cases, by all other departments of the government.  And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.

The Supreme Court is an eminent tribunal within the constitutional system, but that system exists to preserve self-government and self-government presupposes that the people will not cede all power to interpret the Constitution over to an unelected judiciary. This same popular understanding of the Constitution, in which all people who enter into the social contract of the American nation throughout its existence embody the fundamental will of the Constitution, meant that Lincoln had to offer his own justification for defying the Court and why Dred Scott was incorrect. The people cannot resign their government into the hands of the Supreme Court or those of the president. Jackson and Lincoln’s invocations of departmentalism demonstrate that the executive has a power to create constitutional debate by disagreeing with the judiciary’s rulings. This is not a power for the president to end or to close off the constitutional debate. Instead, the principles of republican government require the president to make a constitutional argument to the people so that they themselves can resolve a constitutional debate between the branches of the federal government.

In the Biden administration’s decision to issue a new eviction moratorium in defiance of a Supreme Court decision, President Biden has joined Jackson and Lincoln in advancing departmentalism. Unlike Jackson and Lincoln, however, Biden has failed to articulate his understanding of departmentalism. He has not offered any argument as to why the Supreme Court’s decision was incorrect, why the executive branch possesses the power to issue an eviction moratorium, or why he can defy existing judicial precedents. Biden’s remarks in response to press questions about the constitutionality of the new moratorium are revealing: “the courts made it clear that the existing moratorium was not constitutional; it wouldn’t stand. And they made that clear back in, I guess, July 15th or July 18th”: “The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster. Number one. But there are several key scholars who think that it may and it’s worth the effort. But the present — you could not — the Court has already ruled on the present eviction moratorium.” Disclosing his awareness that the Court had ruled such an act to be unconstitutional and recognizing the strength of the Court’s argument, Biden simply gave permission to his administration to defy the ruling without arguing why it could do so. This move may have been a strategic tactic to foster further litigation to delay the impact on renters while the government distributes relief funds, something Biden himself acknowledged. Yet the president’s flippant willingness to defy a Supreme Court decision without making an argument for doing so is a constitutional moment that should not be overlooked.

Jackson and Lincoln recognized the delicate nature of departmentalism and felt compelled to give careful arguments for why and when Supreme Court decisions could be disobeyed. They understood that the position as a constitutional office allows each branch to interpret the Constitution for itself but also requires each branch to justify its interpretation and actions through public constitutional argumentation. Departmentalism raises the stakes of constitutionalism by creating confrontations between the branches over the meaning of the nation’s fundamental law; carrying out the confrontation through public constitutional debate lowers the stakes by requiring it to be fought on the grounds of reasoned argument. It also elevates the role of the people in a republic by reminding them of their responsibility to defend the Constitution and ensure it is followed. Biden, in contrast, merely asserted the departmentalist power without any justification. This is a post-modern distortion of departmentalism that holds the president has an absolute and arbitrary power to defy judicial rulings by sheer force of will. Jackson and Lincoln held that the executive’s power to employ departmentalism depends upon the president’s ability to persuade the people that the defiance of a decision is constitutionally correct. This power should only be exercised after careful consideration and when a strong constitutional case can be made that defiance is necessary. Biden has not bothered to even attempt to make a case yet.

Of course, the assertion of departmentalism without a constitutional argument was made possible by the Court’s weak decision regarding the previous eviction moratorium. Justice Kavanaugh’s argument amounted to the claim that the Court can turn a blind eye to unconstitutional actions if they have a set termination date since the injury to the Constitution will soon expire. In some ways, this was an endorsement of an extraconstitutional prerogative power for the executive to temporarily act outside of, or even against, the Constitution for the good of the nation. The Court’s unwillingness to assert its own judicial power to strike down acts it finds clearly unconstitutional practically invited the president to ignore the Court’s ruling. Biden’s comments also suggest that he would take a future Court decision invalidating this eviction moratorium to settle the constitutional issue for all time. Biden’s commitment to departmentalism might only last until the Court issues a more definitive ruling, in which case the president would accept judicial supremacy. This suggests that Biden is not committed to departmentalism as a matter of principle but has stumbled upon it out of convenience in the current political moment. Biden’s departmentalism is not just post-modern in the sense that it reduces executive power to the exercise of willpower but in the second sense that it treats departmentalism as a matter of political interest rather than constitutional principle.

This constitutional moment will pass, as all moments do. How it passes depends on the individual actors involved in the moment. President Biden can reverse course from the post-modern departmentalism he has endorsed by making a serious constitutional argument to the public to justify his defiance of a judicial decision; although the constitutional considerations discussed at the beginning of this essay may make such a claim to an executive power to issue a moratorium difficult. The Supreme Court can still issue a strong ruling defending Congress’ legislative power. If the Court does invalidate this moratorium, Biden could proceed in a Lincolnian manner by conceding the binding nature of the decision in the specific case while issuing a new moratorium tailored to the then-existing situation to continue the constitutional debate. Of course, continued defeats in the courts would sap Biden’s political capital on the issue and would likely shape public perception to see the effort as a prolonged and fruitless attempt to usurp a legislative function.

What cannot be lost in the current constitutional moment is the problematic appeal to departmentalism which has emerged. Unlike the great clashes between the president and the Supreme Court which have filled history, this current confrontation is marked by relatively little public attention or concern. The idea that the president can assert a power to defy a judicial decision without making any public constitutional argument to justify said defiance is a bold new doctrine which divorces an energetic executive from the people themselves who keep him responsible. The Biden administration, whether intentionally or not, has appealed to a constitutional power that has been invoked sparingly in constitutional history without undergoing the process necessary for the exercise of this power. Presidents who recognize a power to disobey Supreme Court rulings without defending their disobedience in constitutional terms reduce the executive power to mere will unconstrained by the Constitution or the popular support on which the republic depends. It assumes that the president is characterized by boundless energy which has no form and is not directed by the Constitution. This is not to deny the potential for a departmentalist power to disobey the Court. Rather, the constitutional separation of powers, as understood by Lincoln and Jackson, both empowers constitutional officers to act on their own interpretation of the Constitution when imperative and constrains them to justify their exercise of this power by making a constitutional argument that engages the public in constitutional debate. This means that the ultimate resolution of constitutional questions will not lie with whichever branch of government is able to assert its will over the others, but the people themselves, understood as all those who will make up the constitutional union for as long as it lasts.

2 thoughts on “Post-Modern Departmentalism: The New Eviction Moratorium as a Constitutional Moment

  1. Thanks for your prescient article concerning CDC’s extension of the eviction moratorium.

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