Gary Schmitt of the American Enterprise Institute places the president’s decision about a federal eviction moratorium in context.
Before notions of “bully pulpit,” “popular mandates,” and “party leader” became routinely associated with the occupant of the White House, the Constitution set the standard for being presidential. The Constitution emphasizes less the powers a president could exercise and more the ends for which those powers were used — to wit, his oath to “faithfully execute the Office of President” and “to the best” of his “ability, preserve, protect and defend the Constitution of the United States.” Importantly, included under his duty to faithfully execute the office was the specific obligation to “take Care that the Laws be faithfully executed.”
But just this past week, President Biden admitted that he lacked the legal authority to extend the Centers for Disease Control and Prevention’s (CDC) eviction moratorium (originally enacted by President Trump) and yet ordered the CDC to come up with dubious legal rationale for extending it further. This is reminiscent of Teddy Roosevelt’s view of presidential power: A president can do whatever he wants absent an explicit prohibition. Indeed, as Maxine Waters, the chair of the House Financial Committee Services, so pointedly put it on the administration extending the moratorium, “Who is going to stop them? Who is going to penalize them? There is no official ruling saying that they cannot extend this moratorium.”
The administration’s decision to extend the moratorium is no less than a slap at the Supreme Court. A little over a month ago, a majority of the justices agreed that there was no statutory basis for the ban on evictions. The only reason the White House could ignore this decision was because Justice Brett Kavanaugh, while agreeing with that legal finding, voted with the liberals on the court to extend the ban “because the CDC plans to end the moratorium in only a few weeks.”
