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Is a president of the United States flagrantly defying the Constitution an authoritarian act? A threat to democracy? Something that at least should be discouraged or frowned upon?
Judging by the reaction of Democrats and center-left commentators to the lawless last-minute decision of President Joe Biden’s CDC to extend an eviction mora- torium sure to be struck down in the courts, the answer is emphatically “no.”
At the same time, we are constantly being told that, say, a Texas election bill to prohibit drive-thru voting or Tucker Carlson’s latest monologue represents dire democratic backsliding, almost none of Biden’s allies are raising a peep against a measure that represents exactly the sort of highhanded unilateral rule practiced by authoritarians everywhere.
Indeed, Biden’s handiwork is being celebrated. What can he do as follow- up? Suspend habeas corpus? Quarter troops in people’s homes?
Biden’s move is of a piece with similar executive power grabs by his immedi- ate predecessors. That doesn’t make it any better, in fact, it makes it worse. It means that executive lawlessness is becoming an ingrained part of our system. In its own right, Biden’s move is especially egregious.
Trump initially issued an eviction moratorium and the Centers for Disease Control and Prevention followed up with its own moratorium and extensions, even while suffering setbacks in the courts.
There was never any warrant for any of this. The U.S. Court of Appeals for the Sixth Circuit wrote that the legal theory the government advanced would “grant the CDC director near -dictatorial power.”
At the Supreme Court, there were four votes for blocking the moratorium right away. While Brett Kavanaugh wanted to let the moratorium lapse on its own, he stipulated that “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”
Ah, yes — congressional authorization. What a groundbreaking concept. This is how American democracy is supposed to work — if you have the votes to pass something through the House and Senate, and the president signs it, the measure becomes law (assuming it’s not unconstitutional). If you don’t have the votes, it doesn’t become law.
Given all the discussion lately about how our democracy may be entering its death throes, one would expect there’d be a renewed attachment to this part of the democratic process.
Even the White House briefly seemed on board. “In light of the Supreme Court’s ruling,” White House press secretary Jen Psaki said last week, “the president calls on Congress to extend the eviction moratorium.”
Then, a funny thing hap- pened: Nothing.
According to news reports, roughly a dozen of House Speaker Nancy Pelosi’s own colleagues opposed an extension. So, a majority of the people’s representatives were against it — democracy had spoken.
That should have been the end of it, especially given that the White House said it had searched for a legal justification for an exemption and found none.
When Biden reversed course and had the CDC issue another extension, he was, incredibly enough, explicit that “the bulk of the constitutional scholars say it’s not likely to pass constitutional muster.”
It’s not often a president of the United States admits he’s affirmatively violating his sworn duty to uphold the Constitution, but Biden did it — and got fulsome praise from congressional leaders of his own party.
Even though they have custody of the branch of government that is supposed to pass laws, Chuck Schumer and Pelosi were absolutely delighted that the head of the executive branch had, once again, effectively passed one on his own.
The true test of devotion to our system is if public officials honor it even when it produces unwelcome out- comes, or whether they try to find extra-legal workarounds. Trump abysmally failed this test after the last election, and Democrats — as they did under Obama — are showing they are fine with unconstitutional gover- nance so long as it produces their preferred results.
Remember that during their next lecture about how to protect American democracy.