In pushing the CDC to renew a limited version of an expired eviction moratorium, Joe Biden was making the best of a bad situation, as he all but confessed as he announced the new action. For one thing, U.S. Supreme Court Justice Brett Kavanaugh, writing a concurrence in a 5-4 ruling allowing the moratorium to stand for another month, warned the administration that his patience might run out. There’s a strong possibility a lower court backed by SCOTUS will swat the measure down, just as there is a less robust possibility the courts will recognize a 60-day version of it limited to explicitly to areas with rising COVID-19 case numbers. Biden’s decision to not press for an extension was a judgement call, and when the president got serious heat from congressional Democrats for bungling the situation, he did the righteous thing by giving the benefit of the doubt to those facing evictions.
That is not, to put it mildly, how it looks to the folks at the movement-conservative flagship publication National Review. Charles C. Cooke greeted Biden’s presser by claiming the president had violated his oath of office. Cooke subsequently called, and I am not making this up, for civil disobedience against the moratorium. Not to be outdone, David Harsanyi called the moratorium extension an “unprecedented attack on the Constitution” and Phillip Klein urged Republicans to “shut down the Senate” to protest the outrage. Ryan Mills chipped in with a human-interest story about “small landlords” being unable to make ends meet by evicting impecunious tenants and getting some new ones into their properties. And Kevin Williamson rounded things out with a broader piece on abuse of “emergency” powers by presidents past and present. Several other cries of anguish and fist-shaking vows of defiance may have appeared at NR as I write this piece; I’ve hit the publication’s paywall from every available direction.
The first point in response to this fevered line of attack is probably the most important: It’s not at all clear that the eviction moratorium raises any constitutional issues. Yes, Biden mentioned “constitutional law” in his presser, and there is an exotic point of view among some conservative lower-court judges that even Congress has no constitutional power to interfere in landlord-tenant contracting arrangements. But all Kavanaugh’s famous concurrence says is that the CDC has exceeded the authority it had to make emergency declarations, which is why the problem could probably be fixed by a simple congressional authorization. Any way you look at it, it’s not like Biden wants to quarter troops in private homes or confiscate firearms. If there is a constitutional issue, it is certainly not one that calls into question Biden’s oath of office, for God’s sake.
Legal issues aside, you have to wonder if there are any Republicans on Capitol Hill who agree with NR’s advice that they make landlord rights the hill on which they will die in the fight against Joe Biden and his party. This creates, shall we say, a certain optics problem, particularly in a party that is trying to replace an elitist with a populist image. Yes, there are landlords who are hardly Daddy Warbucks themselves, but then again, what the evil tyrant Joe Biden really wants is to get them money to cover back rent and current obligations, which is what Congress at his request authorized $47 billion smackers to do. And what Biden made very clear at his presser is that the main purpose of the moratorium (other than preventing evicted families from contributing to the current COVID-19 spike) is to buy a little time for that money to get distributed. He’s hardly coming across like Stalin liquidating the kulaks.
When I tweeted about this, one very smart and experienced ex-Republican had a thought:
Maybe so, and maybe this has been a matter of deep conviction at NR in the past. Harsanyi did write a piece describing the original Trump-authorized eviction moratorium of last September as “state-sanctioned theft.” But it’s unlikely a Trump-led party will follow that line or anything that could restrict the former president’s future imperial ambitions.
