Greg Weiner has a good piece at the NY Times about President Biden’s eviction moratorium and Congress’s reluctance to legislate. Biden was right the first time: Congress should act to extend the moratorium if it thinks it’s necessary. Greg captures how constitutionally distorted the system has become, with members of Congress urging the executive to act in their place. Yes, it seems likely that Congress was not going to extend the moratorium, but that does not create executive power to do so. Why not urge state and local governments to take action?

But this has become routine, with Congress regularly deferring to the executive and the judiciary rather than exercising its own constitutional authority. 

It also seems like bad constitutional politics for President Biden to openly confess the executive branch is on weak constitutional ground. In late June, the Supreme Court declined to invalidate the moratorium. But four justices noted they would, with Justice Kavanaugh joining the Court’s refusal to intervene for prudential reasons (the moratorium was set to expire at the end of July), while noting  that “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium.”  

Against this backdrop, Biden seems to be challenging the Court’s constitutional understanding but, as Benjamin Slomski points out, not offering constitutional reasons for doing so. If Biden thinks he has the constitutional authority, he should explain why. 

Yet it’s not clear that this is a case of “post-modern departmentalism” as Slomski argues. Rather, this looks far more routine (which is not at all to say acceptable). First, the Supreme Court did not issue an opinion. The majority declined to invalidate the moratorium with only Kavanaugh issuing an opinion. So the Court has not yet offered us constitutional reasons that Biden is challenging. Second, it looks like the basis of Biden’s modified moratorium order is statutory. Executive agencies are claiming that Congress has already authorized such action. This, at any rate, seems to be Laurence Tribe’s argument. 

Still, it distorts the constitutional scheme when the one branch of government clearly capable of bringing clarity and authority to the situation, Congress, is not doing so. And Biden has compounded the problem, assisting Congress in abdicating its constitutional responsibilities and very likely overreaching his own.