11/13/2022 0 Comments The anchoring trap![]() For example, Lincoln understood, as in Dred Scott, that a decision in a case is only strictly binding as it applies to the named litigants to a specific lawsuit. The shock that may come, particularly to conservative readers, is that in principle what the Biden administration did in defiance of the Court on the eviction moratorium is not unconstitutional. As Arkes has explained, “it puts the question of what the principle is behind one’s position and whether he would be willing to honor the same principle when it cuts against his interests.”Ī Biden administration that flagrantly defies an on-point ruling of the Supreme Court opens itself to the precedential invocation of that same principle when a future Republican administration seeks to downplay a ruling of the Court by sustaining its own understanding of constitutionality, as per its branch’s independent interpretive prerogative. Rather, the surest defense is what constitutional scholar Hadley Arkes calls the operationalizing in constitutional government of the Golden Rule. McCarthy also inveighed against the damage the Biden administration is doing to the separation of powers: “n blatant violation of his solemn duty to execute the laws faithfully, Biden has usurped Congress’s legislative authority and declared the power to legislate.”īut what even an incisive thinker such as McCarthy misses is that the surest defense of the separation of powers is not tut-tutting about structural protections of liberty, even if those protections are valuable. National Review‘s Andrew McCarthy ably explained the specious reasoning given by the Biden administration to continue the eviction moratorium. Even as the administration conceded it had no statutory ground to continue “new, targeted eviction moratoriums,” it announced it would press on in defiance of the Court’s June 29 ruling. Despite frequent assurances that the CDC could not construe existing legislation to unilaterally incorporate a further extension of the eviction moratorium, the Biden administration earlier this week announced the grounds on which the eviction moratorium would continue. Concerned congressional Democrats then began pressing the Biden administration to search for any legal language, no matter how attenuated, to continue the moratorium. As if caught by surprise by the Supreme Court’s ruling nearly five weeks ago, Democrats in Congress, particularly the House “Squad,” began raising a ruckus over the past seven days to use whatever tools they have at their disposal to extend the moratorium.īut Congress, under short notice and with little institutional willingness to take up this matter, was a dead end. Justice Brett Kavanaugh expressed that the Court would tolerate a unilateral extension of the moratorium by the executive branch this far but no further than the end of July, absent ordinary legislation addressing the matter. On June 29, the Supreme Court, in the 5-4 “shadow docket” decision of Alabama Association of Realtors, determined that the extension of the pandemic-related eviction moratorium would expire. The Biden administration is playing into a trap of their side’s own-making-and smart Republicans would be wise to remember this moment as a precedent for a future vindication of the Constitution’s separation of powers.Īs panic set in over the expiration of the pandemic-related eviction moratorium, Democrats scrambled to protect a core constituency’s expiring benefit. ![]()
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