by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The Biden administration is struggling to find its footing in the Supreme Court.
Thursday night’s decision ending the federal ban on evictions is the latest in a string of judicial reversals for President Joe Biden. Earlier in the week, the Court ordered the president to maintain the Trump-era “Remain in Mexico” policy for asylum-seekers. This spring, Biden appointees at the Justice Department blundered into a unanimous defeat in a little-noticed criminal sentencing dispute.
In some cases, the errors were self-inflicted. The administration has enacted policies knowing they were on uncertain legal ground, doubled down on assertions picked apart in the lower federal courts, and flipped positions in pending cases only to lose by a lopsided margin. In an unusual delay, the president did not nominate a solicitor general, the government’s top representative in the High Court, until Aug. 11.
Thursday’s decision followed a June dispute over an earlier iteration of the eviction ban, in which the Supreme Court signaled the moratorium was unlawful. The Centers for Disease Control, with backing from the White House, chose to extend the eviction ban anyway, inviting a high stakes confrontation over the scope of its authority.
The bet was a bad one, as Thursday’s decision will hamstring policymakers going forward. The CDC suspended evictions under a provision of the Public Health Service Act that empowers the agency to stop the spread of communicable diseases among the states. The High Court construed that provision narrowly on Thursday, saying it only authorizes actions that directly relate to transmission reduction, such as inspections or pest extermination. But it does not, the Court stressed, sanction any policy that conceivably slows the spread of disease.
The administration also seemed to misfire in its emergency appeal over a district court injunction that required it to maintain the Migrant Protection Protocols.