Washington, DC, is a place where those in power carry out illegal and unconstitutional acts so blithely and regularly, it’s barely even remarked upon. So it’s always instructive when observers of goings-on in the capital suddenly perk up, notice, and sound the alarm.
In this case, Joe Biden’s reluctant extension of the recently expired moratorium has prompted a series of rebukes from right-wing and centrist press outlets who fear it may mean the demise of the rule of law as we know it. The Bulwark — essentially the now-defunct Weekly Standard, but rebranded as an “anti-Trump” conservative outlet aimed at liberals — warned the measure was a “Trumpian instance of norm-busting” that undermines Congress and “atrophies our self-governing muscles,” with its cofounder declaring that “Biden just undermined the rule of law.” Likewise, the right-wing National Review urged Republicans to “shut down the Senate” to “defend the Constitution” from “Biden’s brazen abuse of his constitutional oath”; elsewhere, it called on all Americans, including landlords, collection agencies, and the police, to simply ignore the “illegal mirage.” After all, “this is a country built atop an aversion to illegitimate power.”
You’re hearing similar objections a little closer to the center. Over at The Week, Bonnie Kristian called the order “a novel way to degrade the rule of law,” and, fretting about the alarming precedent it might set, was unable to find “a comparable brazen example [of lawlessness] from US history” even after consulting three legal experts. Most significantly, the editorial board of the Jeff Bezos–owned Washington Post warned Biden was giving renters a lifeline “at the expense of the rule of law,” insisting he isn’t entitled to “a pass” on this bedrock principle just “because his heart is in the right place.”
First off, the idea that the president is doing something lawless and unprecedently dangerous here is itself pretty dubious. Biden’s not exactly the first president to adjust an executive order to retest its constitutionality. Recall that Donald Trump tweaked his racist “Muslim ban” twice in the face of unsuccessful lower court rulings, something that the same Supreme Court these outlets hold up as above earthly questioning didn’t seem to think was unacceptable, since they upheld the third version.
Meanwhile, though the National Review claims that “the Supreme Court has decided that eviction is not covered under the ‘any other measures’ portion of the underlying statute,” this is not true. The Supreme Court didn’t engage in oral arguments or issue an opinion. The only justice who explained his vote at all was Brett Kavanaugh. In a scant, 163-word concurrence, he “agree[d] with the District Court and the applicants that the Centers for Disease Control and Prevention [CDC] exceeded its existing statutory authority by issuing a nationwide eviction moratorium,” a sentence so ambiguous it could simply mean the problem was the moratorium’s nationwide scope — in which case this new, more targeted order is a reasonable attempt to fix it. The lower court ruling that did decide that was issued by a Trump-appointed judge who did some fairly creative reading of the original text, which is even less ambiguous in its updated form.
The case made by nearly every one of these pieces that this is some kind of norm-breaking power grab rests instead on Biden’s unnecessary statement while issuing the order that “it’s not likely to pass constitutional muster.” Those words will no doubt soon be used to undermine the order’s chances in court, just as Barack Obama’s own words were cited last month to partially block the DACA (Deferred Action for Childhood Arrivals) program. It’s a reminder that, as with his capitulation on the $15 minimum wage or his pursuit of a pointless bipartisan bill, the president is often one of the biggest obstacles to the progressive agenda being pursued in his name.
But put all that to the side, because the thing you really have to know here is how selective this concern for the Constitution and the rule of law is. Throughout the twentieth century, and especially in the last two decades, presidents have brazenly flouted laws and ignored the Constitution when it’s been convenient for defending “national security,” at least as it’s narrowly defined in establishment circles — which usually just means the age-old Washington pastime of invading and bombing other countries. And often, the response has been crickets.
Take Obama in 2011, when he illegally went to war against Libya without ever bothering to get congressional authorization, violating the War Powers Resolution in the process. No matter for the Weekly Standard, which declared Libyan dictator Muammar Gaddafi’s killing (carried out with the direct assistance of US forces) “a great accomplishment for the Obama administration.” When the Washington Post editorial board weighed in, it was to characterize the deadline for Obama to get authorization for the war — and thus make it legal — as a “dilemma” for the then-president. While urging Obama to get authorization, the board made clear they “long harbored doubts about the wisdom of the War Powers Resolution, threatening as it does to permit Congress to infringe on the president’s constitutional authority to command and direct military operations,” and advised him to “openly challenge the constitutionality of the War Powers Resolution and work toward its repeal and amendment.” (Those familiar with the US Constitution might recall that it explicitly gives only Congress the power to declare war).
You could go down the line like this. How about the drone program, which gives the president the tyrannical power to unilaterally kill anyone, anywhere on Earth, including American citizens, without due process? “Drone strikes are bad; no drone strikes would be worse,” intoned the Washington Post editorial board. The National Review published numerous defenses of the practice (Al-Qaeda shouldn’t be “rewarded with even more American caution”), including the Obama administration’s radical claim that it could assassinate US citizens (“The government’s war powers must be boundless, at least in theory,” went one column; “American citizens do not carry the protections of the Constitution with them when they leave our country”). It savaged the program’s critics, attacking Senator Rand Paul’s filibuster of a judge who authored a memo justifying the droning of US citizens as a “circus,” and mocking the whistleblower we now know was Daniel Hale, who revealed the recklessness and horror of the program: “Dear Mr. Source,” wrote a staff writer, the program “is designed to make the waging of war as precise as possible.” Read Hale’s account of what led him to blow the whistle, and see for yourself how “precise” it is.
Or how about the torture camp the United States notoriously operates in Cuba to evade US laws, where the government has confined and brutalized teenagers, a cameraman for a disfavored news network, and a variety of completely innocent men? A sampling of National Review headlines: “Keep Gitmo Open”; “The Moral Case for Keeping Guantanamo Open”; “Why Not Shoot Them?” Biden’s air strikes in Syria earlier this year got much deserved and laudable criticism from the Washington Post editorial board, but absent were the condemnations of an attack on the rule of law. Meanwhile, how many are aware that just this weekend — only two days before Biden’s eviction moratorium apparently assailed the constitutional foundations of the country — the administration bombed Somalia, a country the United States has never declared war on and has no real legal authorization to strike, for the third time in two weeks? Probably not many, given the media silence about the event.
This is the perfect encapsulation of the logic and values of Washington. Unilaterally waging war, bombing and killing anything on a whim, torturing and detaining people without trial in a camp designed to avoid US law? At best, some small discomfort; at worst, vehement defenses. But acting to keep people from being thrown on the street, and in the middle of a deadly pandemic at that? Now that’s an assault on the Constitution and the rule of law. Won’t someone think of the children?