Bowing To Pressure From The Far Left, Biden Issues New Moratorium He Admits Is Unlawful

Despite Repeated Statements From The White House That The Supreme Court Clearly Said Only Congress Could Extend Or Renew An Eviction Moratorium, The Biden Administration ‘Reversed Its Position’ Under Intense Pressure From Left-Wing Democrats

President Biden And White House Staff Said Repeatedly That The Administration Could Not Act Unilaterally To Extend The CDC’s Eviction Moratorium Because ‘It’s Not Likely To Pass Constitutional Muster’

“Before the reversal, Biden had been open to extending the ban but accepted the advice of the White House counsel that he had no legal means to do so, [a] person [familiar with the matter] said.” (“Biden Told White House Chief To Seek Harvard Legal Scholar’s Guidance, Leading To Reversal On Evictions,” The Washington Post, 8/05/2021)

PRESIDENT JOE BIDEN: “Any call for a moratorium based on the Supreme Court recent decision is likely to face obstacles. I’ve indicated to the CDC I’d like them to look at other alternatives than the one that is in pow- — in existence, which the Court has declared they’re not going to allow to continue. And the CDC will have something to announce to you in the next hour to two hours.” (President Biden, Press Conference, 8/03/2021)

  • PRESIDENT BIDEN: “Well, look, the courts made it clear that the existing moratorium was not constitutional; it wouldn’t stand.  And they made that clear back in, I guess, July 15th or July 18th. … One, I’ve sought out constitutional scholars to determine what is the best possibility that would come from executive action, or the CDC’s judgment, what could they do that was most likely to pass muster, constitutionally. The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster. Number one. But there are several key scholars who think that it may and it’s worth the effort. But the present — you could not — the Court has already ruled on the present eviction moratorium.” (President Biden, Press Conference, 8/03/2021)
  • PRESIDENT BIDEN: “The CDC has to make the — I asked the CDC to go back and consider other options that may be available to them. You’re going to hear from them what those other options are. I have been informed they’re about to make a judgment as to potential other options. Whether that option will pass constitutional measure with this administration, I can’t tell you. I don’t know. There are a few scholars who say it will and others who say it’s not likely to. But, at a minimum, by the time it gets litigated, it will probably give some additional time while we’re getting that $45 billion out to people who are, in fact, behind in the rent and don’t have the money. That’s why it was passed in — in the act that we passed in the beginning of my administration, and it went to the states.” (President Biden, Press Conference, 8/03/2021)

SENIOR ADVISOR TO THE PRESIDENT GENE SPERLING: “Unfortunately, the Supreme Court declared on June 29th that the CDC could not grant such an extension without clear and specific congressional authorization. But given the rising urgency of the spread of the Delta variant, the President has asked all of us, including the CDC, to do everything in our power to look for every potential legal authority we can have to prevent evictions. To date, the CDC Director and her team have been unable to find legal authority, even for a more targeted eviction moratorium that would focus just on counties with higher rates of COVID spread.” (Gene Sperling, Press Briefing, 8/02/2021)

  • SPERLING: “Well, I would say that on this particular issue, the President has not only kicked the tires; he has double, triple, quadruple checked.  He has asked the CDC to look at whether you could even do targeted eviction moratorium — that just went to the counties that have higher rates — and they, as well, have been unable to find the legal authority for even new, targeted eviction moratoriums.” (Gene Sperling, Press Briefing, 8/02/2021)
  • SPERLING: “You know, I think the wording in the Supreme Court opinion was fairly, you know, clear that — they said the CDC did not — could not grant such extension without, quote, ‘clear and specific congressional authorization.’ … But, I think, on the eviction moratorium issue, we have run into — we have run into, so far, what seems to be a very difficult obstacle from the Supreme Court ruling.  And, again, the President went out of his way to push to the CDC today to look even at 30 days, even targeted to high — you know, counties with higher infections, and the CDC independently came back and said that they could not, at this time, find the legal authority.” (Gene Sperling, Press Briefing, 8/02/2021)

WHITE HOUSE PRESS SECRETARY JEN PSAKI: “Unfortunately, the Supreme Court has made clear that this option is no longer available.  In June, when CDC extended the eviction moratorium until July 31st, the Supreme Court’s ruling stated that ‘clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.’ In light of the Supreme Court’s ruling, the President calls on Congress to extend the eviction moratorium to protect such vulnerable renters and their families without delay.” (Jen Psaki, Press Release, 7/29/2021)

Even House Democrat Leaders At One Point Agreed ‘They Don’t Have The Authority To Extend The Moratorium’

HOUSE SPEAKER NANCY PELOSI (D-CA): “At the same time, as the CDC is increasing requirements for masks, encouraging vaccinations and other public health suggestions, they say they do not have – and I trust – that they don’t have the authority to extend the moratorium.  The ball then, yesterday, came to our court, and we will, we will make good with – of it.  But, again, it will take a little more time.” (Speaker Pelosi, Press Gaggle, 7/30/2021)

HOUSE MAJORITY LEADER STENY HOYER (D-MD): “As the speakers have mentioned, and as you know, at the last minute, it became clear that we were going to have the moratorium expire. And the Administration concluded that it was without the legal power to take action and came to us yesterday, or late the day before that, to ask us to take action.” (Rep. Hoyer, Press Gaggle, 7/30/2021)


Just Weeks Ago, The Supreme Court Was Clear That Only New Legislation From Congress Could Extend The Moratorium

“The Supreme Court on [June 29th] refused to lift a moratorium on evictions that had been imposed by the Centers for Disease Control and Prevention in response to the coronavirus pandemic. The vote was 5 to 4, with Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer, Sonia Sotomayor, Elena Kagan and Brett M. Kavanaugh in the majority. The court gave no reasons for its ruling, which is typical when it acts on emergency applications. But Justice Kavanaugh issued a brief concurring opinion explaining that he had cast his vote reluctantly and had taken account of the impending expiration of the moratorium.” (“Supreme Court Rejects Request To Lift Federal Ban On Evictions,” The New York Times, 6/29/2021)

  • “‘The Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium,’ Justice Kavanaugh wrote. ‘Because the C.D.C. plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application’ that had been filed by landlords, real estate companies and trade associations. He added that the agency might not extend the moratorium on its own. ‘In my view,’ Justice Kavanaugh wrote, ‘clear and specific congressional authorization (via new legislation) would be necessary for the C.D.C. to extend the moratorium past July 31.” (“Supreme Court Rejects Request To Lift Federal Ban On Evictions,” The New York Times, 6/29/2021)

THE WASHINGTON POST EDITORIAL BOARD: “The eviction moratorium was … imposed in September on shaky legal authority. The Supreme Court upheld it only through the end of last month. Mr. Biden announced Monday that ‘our team is redoubling efforts to identify all available legal authorities to provide necessary protections,’ but neither he nor the CDC can ignore clear instructions from the nation’s highest court.” (Editorial, “There’s Plenty Of Money To Avoid Evictions. States Just Have To Spend It.,” The Washington Post, 8/02/2021)

“[I]t’s a wonder it ever came to this. Democrats have privately expressed exasperation that the administration requested congressional action so late in the game — on Thursday, on the eve of the moratorium expiring. At the same time, it’s not like the Supreme Court’s posture has been a mystery. Congress might never have passed something to extend the moratorium … But the White House decided to apply pressure anyway, by throwing up its arms and suggesting that it was incapable of acting on its own — even if it meant it wound up questioning the legality of the thing it very soon did.” (“Biden’s Novel Evictions Defense: Maybe It’s Illegal, But It’s Worth It,” The Washington Post, 8/04/2021)


Yet After Repeatedly Declaring The Administration Did Not Have The Authority To Extend The Eviction Moratorium, ‘[T]he White House Completely Reversed Its Position’ And Had The CDC Issue A New One, Caving To Furious Political Pressure From Left-Wing Democrats

“Amid pressure from congressional liberals … the Biden administration reversed course Tuesday and moved to effectively extend a pandemic-era eviction moratorium. Just the day before, a top administration official had said they had looked hard and hadn’t found a legal avenue to do such a thing.” (“Biden’s Novel Evictions Defense: Maybe It’s Illegal, But It’s Worth It,” The Washington Post, 8/04/2021)

“The Biden administration announced a temporary ban on evictions across most of the country on Tuesday, a move that bent to intense pressure from liberal House Democrats but that President Biden acknowledged may not prove constitutional. The Centers for Disease Control and Prevention issued a moratorium on evictions for 60 days for U.S. counties with ‘substantial and high levels of community transmission’ of the coronavirus, according to an agency news release. About 90 percent of the country will be covered by the ban as the virus’s delta variant spreads quickly throughout the country, Senate Majority Leader Charles E. Schumer (D-N.Y.) said in a statement. The 19-page order lists criminal penalties including fines and jail time if someone is found to have violated the eviction moratorium. The Biden administration had previously said it had no legal authority to extend a separate national eviction moratorium that lapsed over the weekend.” (“Biden Administration Moves To Block Evictions In Most Of U.S. Following Liberal Backlash,” The Washington Post, 8/03/2021)

  • “[T]he White House completely reversed its position from ‘We can’t issue a new eviction moratorium’ to ‘We’re going to issue a new eviction moratorium.’” (Punchbowl News AM, 8/04/2021)
  • “The administration’s move Tuesday capped a sudden and remarkable rift between Biden and his House Democratic allies, including House Speaker Nancy Pelosi (D-Calif.), who pushed the administration to act. Late last week, just days before the CDC’s moratorium was set to expire, the White House issued a last-minute call for Congress to pass a law offering new eviction protections. At the time, the White House said it did not have the legal authority to do so on its own. House Democrats responded angrily, saying such a measure was impossible to pass through Congress on short notice and pressed Biden officials to extend the moratorium unilaterally. Neither side acted, and the moratorium lapsed. Pelosi waged a multiday campaign to press the White House to act unilaterally. She spoke on the phone with multiple senior White House officials — including White House Chief of Staff Ron Klain, White House aide Steve Ricchetti and the president himself — to urge them to reverse course and extend the ban, according to one person familiar with the matter, who spoke on the condition of anonymity to reveal internal conversations. Rep. Cori Bush (Mo.), who was homeless once, drew immense support from other Democrats by sleeping outside the U.S. Capitol for four consecutive nights in protest of the lapsed moratorium, sending a signal to the White House that the backlash was only growing. The White House had spent weeks trying to corral Democrats behind a big infrastructure package and there were clear signs in recent days that the party was fracturing. So after days of insisting there was nothing the White House could do, the Biden administration announced its new actions on Tuesday.” (“Biden Administration Moves To Block Evictions In Most Of U.S. Following Liberal Backlash,” The Washington Post, 8/03/2021)

REP. MAXINE WATERS (D-CA), House Financial Services Committee Chair: “I don’t buy that the CDC can’t extend the eviction moratorium - something it has already done in the past! Who is going to stop them? Who is going to penalize them? There is no official ruling saying that they cannot extend this moratorium. C’mon CDC - have a heart! Just do it!” (Rep. Waters, @RepMaxineWaters, Twitter, 8/02/2021)

“The behind-the-scenes story of the White House’s sharp pivot reveals how a Biden administration that prides itself on steering clear of drama found itself swept up in a public relations fiasco and tried to limit the fallout.” (“Biden Told White House Chief To Seek Harvard Legal Scholar’s Guidance, Leading To Reversal On Evictions,” The Washington Post, 8/05/2021)


Biden And Speaker Pelosi Even Shopped For Legal Scholars Who Disagreed With ‘The Bulk Of The Constitutional Scholarship’ Saying The Moratorium Wasn’t Lawful

PRESIDENT BIDEN: “I’ve sought out constitutional scholars to determine what is the best possibility that would come from executive action, or the CDC’s judgment, what could they do that was most likely to pass muster, constitutionally. The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster.” (President Biden, Press Conference, 8/03/2021)

  • “During one conversation with [House Speaker Nancy] Pelosi [D-CA], Biden said his legal advisers were warning him that he couldn’t extend the moratorium due to a June 29 Supreme Court ruling. The high court had let the moratorium stand in a 5-4 decision, but Justice Brett Kavanaugh said the CDC had ‘exceeded its existing statutory authority’ and Congress must act to extend the ban. Biden asked Pelosi if she had any legal experts with a different take. Pelosi provided Biden with several names, including Laurence Tribe, the well-known Harvard Law professor. Tribe also has a long friendship with [White House Chief of Staff Ron] Klain, himself a Harvard Law grad. Tribe encouraged White House officials to move ahead with the revised moratorium.” (Punchbowl News AM, 8/04/2021)

“After White House legal advisers found he could not extend a national eviction moratorium, President Biden told Chief of Staff Ron Klain to seek the advice of Harvard law professor emeritus Laurence Tribe about whether an alternative legal basis could be devised … according to a person familiar with the matter.” (“Biden Told White House Chief To Seek Harvard Legal Scholar’s Guidance, Leading To Reversal On Evictions,” The Washington Post, 8/05/2021)

And So The Administration Released A New Regulation That Was ‘Hastily Cobbled Together And Legally Questionable’ And Is Already Under Scrutiny By The Courts

“The Biden administration itself has acknowledged it might be on tenuous legal footing, and it told members of Congress last week that any new moratorium would need to be enacted by lawmakers. The White House changed course after liberal Democrats pressed the administration to take immediate, unilateral action to prevent people behind on their rent from being forced out of their homes at a time of surging coronavirus cases.” (“Legal Battle Looms Over New Eviction Moratorium,” The Wall Street Journal, 8/04/2021)

THE WASHINGTON POST EDITORIAL BOARD: “But the CDC’s action was almost certainly illegal. Under pressure from House Speaker Nancy Pelosi (D-Calif.) and progressive Democrats, President Biden and the CDC may have muted accusations that they failed to stick up for desperate renters. … But perhaps not as long as advertised — because courts may strike it down before October — and at the expense of the rule of law.” (Editorial, “The CDC’s Eviction Moratorium Is Almost Certainly Illegal” The Washington Post, 8/04/2021)

  • “The law the CDC relies on to justify its unilateral eviction ban authorizes the agency to impose measures such as ‘inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals,’ not to freeze the rental housing market month after month in nearly the entire country. Many landlords are themselves desperate, on the hook to keep up their properties, pay taxes and service loans whether their tenants pay their rent. Justice Kavanaugh in June clearly signaled willingness to disregard their plight — and the law’s limitations — for another few weeks, not months.” (Editorial, “The CDC’s Eviction Moratorium Is Almost Certainly Illegal” The Washington Post, 8/04/2021)

THE WALL STREET JOURNAL EDITORIAL BOARD: “Many Presidents have overstepped their authority, but this is premeditated lawlessness. The government has been slow to distribute pandemic relief funds to renters. Now to buy time and silence Democratic critics, Mr. Biden has signed off on an order that he admits he can’t defend in good faith. The CDC’s original eviction ban, issued last September under President Trump, was extensively litigated before it expired on July 31. Five federal courts, including an appellate panel at the Sixth Circuit, ruled against it. A few courts went the other way, saying that landlords hadn’t met the burden required for a preliminary injunction. But the judicial score was lopsided against the moratorium.” (Editorial, “President Biden’s Lawless Eviction Ban,” The Wall Street Journal, 8/04/2021)

  • “When the issue reached the Supreme Court this summer, five Justices let the eviction ban stand until it expired. Justice Brett Kavanaugh did so, however, as a matter of forbearance, ‘because the CDC plans to end the moratorium in only a few weeks.’ There was zero ambiguity in his reading of the law: ‘In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.’ The White House spent days telling Democrats that Mr. Biden couldn’t renew the order…. A day later Mr. Biden did it anyway … This is disdain for the rule of law. Where is Attorney General Merrick Garland? … The lesson Mr. Biden seems to have taken from Barack Obama’s ‘pen and a phone’ phase is that a Democratic President can get away with anything. The courts should quickly tell him he can’t.” (Editorial, “President Biden’s Lawless Eviction Ban,” The Wall Street Journal, 8/04/2021)

A Federal Judge Has Already Ordered The Biden Administration To Respond By The End Of The Week To A Legal Challenge

“A U.S judge early Thursday ordered the Biden administration to quickly respond to a legal challenge to a new eviction moratorium put in place by the Centers for Disease Control and Prevention (CDC). U.S. District Judge Dabney Friedrich ordered the Justice Department to respond by 9 a.m. (EDT) Friday. The Alabama Association of Realtors and others said in an emergency filing late Wednesday that the CDC had issued the new order ‘for nakedly political reasons - to ease the political pressure, shift the blame to the courts for ending the moratorium, and use litigation delays to achieve a policy objective.’ … The groups won a ruling from Friedrich in May declaring that the CDC’s eviction ban unlawful, but an appeals court blocked an effort to enforce the decision. In June, a divided Supreme Court agreed to let the CDC moratorium remain in effect after the agency announced it would allow the ban to expire on July 31. Justice Brett Kavanaugh issued a concurring opinion saying in his view extending the CDC moratorium past July 31 would need ‘clear and specific congressional authorization (via new legislation).’” (“Judge Orders U.S. To Respond To CDC Eviction Ban Challenge By Friday,” Reuters, 8/05/2021)


The Biden Administration’s Stark Reversal ‘Recalls Executive Action Taken By Ex-President Barack Obama To Shield Undocumented Migrants Brought To The US As Children From Deportation After Insisting He Didn’t Have The Power To Do So’

“Early last decade, then-President Barack Obama and Congress were in a standoff. Obama badly wanted Congress to pass long-failed comprehensive immigration reform. But allies called for him to do something himself. His repeated response: I can’t. I’m not a ‘king.’ I’m not an ‘emperor.’ … But when Congress continued to stall on these issues, he did something himself anyway — twice. He deferred deportations for groups he had said he didn’t have the power to protect unilaterally. The lessons of this apparently weren’t learned by his vice president, Joe Biden, and Biden’s new administration. Or, if they were, the lesson was apparently that it was a gambit worth repeating. But it’s a heck of a way to do the country’s business. And Biden arguably took it even further than Obama.” (“Biden’s Novel Evictions Defense: Maybe It’s Illegal, But It’s Worth It,” The Washington Post, 8/04/2021)

“In some ways, Biden’s maneuvering on Tuesday recalls executive action taken by ex-President Barack Obama to shield undocumented migrants brought to the US as children from deportation after insisting he didn’t have the power to do so. The Deferred Action for Child Arrivals program created by Obama in 2012 set off an extraordinary saga of legal and legislative battles that continue to this day but alleviated political pressure on Obama …” (“Biden Shows He’s Ready To Make Drastic Moves In Covid-19 Fight -- Even If He’s Not Sure They’re Legal,” CNN, 8/04/2021)

SEN. MITCH McCONNELL (R-KY): “A few years ago, President Obama gave a speech in Miami where he said the following about immigration: ‘I know [that] some…wish that I could just bypass Congress and change the law myself. But that’s not how democracy works.’ He’s right. It isn’t. Apparently that wasn’t enough to stop him from pursuing the kind of partisan overreach he once described as ‘ignoring the law’ and ‘unwise and unfair’ anyway…. [N]ow, the Supreme Court will hear arguments in this case later this month on core constitutional principles like the separation of powers and the duty to take care that the laws are faithfully executed. That’s why I led a group of 43 Republican Senators yesterday in filing an amicus brief in support of the challenge to this overreach — a challenge brought by a majority of America’s governors and attorneys general from across the country. As we highlighted in the brief, the Administration’s executive action ‘stands in stark contravention to federal law and to the constitutional principle of the separation of powers.’ It’s also an ‘explicit effort to circumvent the legislative process.’ Whether we’re Republicans or Democrats, this kind of partisan overreach should worry all of us — no matter who is in the White House.” (Sen. McConnell, Remarks, 4/05/2016)


FLASHBACK: Prior To President Obama’s Lawless DACA And DAPA Orders, He Insisted Over And Over, ‘I Can’t Just Make The Laws Up By Myself,’ ‘I’m Not The Emperor Of The United States’

THEN-SEN. BARACK OBAMA (D-IL): ‘We’re not doing an end-run around Congress’ “Everybody’s got their own role. Congress’s job is to pass legislation. The president can veto it or he can sign it. … I believe in the Constitution and I will obey the Constitution of the United States. We’re not going to use signing statements as a way of doing an end-run around Congress.” (Sen. Barack Obama, Campaign Event At Billings West High School, Billings, MT, 5/19/2008)

PRESIDENT OBAMA: “America is a nation of laws, which means I, as the President, am obligated to enforce the law. I don’t have a choice about that. That’s part of my job. … The executive branch’s job is to enforce and implement those laws. And then the judiciary has to interpret the laws. There are enough laws on the books by Congress that are very clear … that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as President.” (President Obama, Univision Townhall, 3/28/2011)

  • OBAMA: “I swore an oath to uphold the laws on the books … Now, I know some people want me to bypass Congress and change the laws on my own. Believe me, the idea of doing things on my own is very tempting. I promise you. Not just on immigration reform. But that’s not how our system works. That’s not how our democracy functions. That’s not how our Constitution is written.” (President Obama, Remarks To The National Council Of La Raza, 7/25/2011)
  • OBAMA: “If Congress has laws on the books… there’s a limit to the discretion that I can show because I am obliged to execute the law. That’s what the Executive Branch means. I can’t just make the laws up by myself.” (President Obama, Univision Interview, 10/25/2010)

PRESIDENT OBAMA: “The problem is that I’m the president of the United States, I’m not the emperor of the United States. My job is to execute laws that are passed.” (President Obama, Google Hangout, 2/14/2013)

  • OBAMA: “Well, I think it is important to remind everybody that, as I said I think previously, and I’m not a king. I am the head of the executive branch of government. I’m required to follow the law.” (President Obama, Univision Interview, 1/30/2013)