Analyzing Biden’s decision to extend the eviction moratorium (despite a contrary Supreme Court ruling), JWI Deputy Director Garrett Snedeker argues that such measures are not unconstitutional–though they imprudently give Republicans reason to pursue similar strategies in the future.
Some excerpts from the piece:
“A 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.”
“Constitutionality, then, is better understood as an ongoing conversation between the branches, with constitutional determination much more fluid and distilled based on the actions and reactions of all the branches based on factors such as institutional competency and willingness to act. What many Americans sense but may not be able to articulate is that we are living in a flawed experiment in self-government, where judicial opinions have the force of upending the rules by which we govern ourselves. A Biden administration that has chosen to re-establish this understanding of constitutionality—arguably one much more in keeping with how the Founders envisioned the branches’ notion of ambition counteracting ambition—could perform a valuable long-term service toward restoring notions of republican self-rule.”
“Conservatives ought to have long memories and at least remain open to creative strategies for vindicating the logic underlying the separation of powers, lest they be subject to a one-way ratchet of power used only against their substantive priorities. Perhaps the Biden administration believes it can play dumb long enough for a political solution to the eviction moratorium to emerge. However, the administration has sprung a trap of its own making by viewing decisions of the Court as only final when it also views them as correct. Conservatives, take note and prepare for when a future Republican administration can use this moment as precedent to defend the principles of republican self-government—as Lincoln would have urged.”
Read the full piece here.