Will Supremes Give Biden the Rebuke He Deserves on Eviction Moratorium?

uTN Social - Free Speech Social Media

The Supreme Court Building in Washington D.C., August 5, 2021 (Brent Buterbaugh/National Review)

As Dan notes, President Biden’s illegal eviction-moratorium edict is headed back to the Supreme Court.

Rich and I discussed this briefly on our TMR podcast today, including the likelihood that the realtors’ group that is suing the administration (specifically, the CDC) would lose in their effort to get the stay lifted. As I explained, the three-panel on the case included Judges Cornelia Pillard and Ketanji Brown Jackson, respectively, Obama and Biden appointees, along with Judge Neomi Rao, a Trump appointee.


I confess to being a tad surprised that Judge Rao agreed with her colleagues that the stay on the moratorium should not be disturbed. The Circuit’s short order does not go into detail regarding the court’s reasoning, but I suspect there are two explanations for this.

First, Judge Rao may have felt bound by the same circuit precedent by which District Judge Dabney Friedrich deemed her hands tied. (Dan has previously explained this, and Leslie McAdoo Gordon had a good post on it at Red State.) In a nutshell, even though the Supreme Court made it clear that five justices — a majority — believe that the eviction moratorium is illegal, at least in the absence of express, specific congressional authorization, there was no formal majority opinion in support of that proposition. There is D.C. Circuit precedent for the proposition that lower courts may not construct a binding precedent by combining dissenting votes with a concurring opinion. Like Judge Friedrich, Judge Rao would have had to buck that precedent in order to vote against keeping the stay in place; it could be hard to justify doing that in any event, but it would probably not be worth the effort unless it would make a difference, which it would not have unless two judges decided to do it.

NR Daily is delivered right to you every afternoon. No charge.

Get Jim Geraghty’s tour of the political news of the day.

Get Kevin D. Williamson’s newsletter delivered to your inbox each Tuesday.

A weekly digest on business and economics from an NR sensibility.

Second, by agreeing on a peremptory order, the panel ensured a quick decision. This means the case will be before the Supreme Court expeditiously — I imagine the realtors are already filing.


On that point, the D.C. Circuit deserves kudos. The judges, including those presumably sympathetic to Biden’s position, could have dragged their feet. That, after all, is the administration’s strategy: The president knows he is highly likely to lose, but was hoping to tie things up in the lower courts long enough that the moratorium, which expires in September, might be moot by the time it gets back to the Supremes. But the panel did not help the administration on that score. The judges admirably agreed to an extraordinarily expedited schedule last week, ensured that the case was fully submitted by midweek, and issued an order before close of business Friday. That is lightning quick by appellate-litigation standards.

The High Court should follow this example. Given the way Biden has abusively exploited the judicial process to sustain a decree he knows is likely to be found unlawful, the justices owe his administration a harsh rebuke. The merits of the case are important, but they are secondary to the bad faith. The Court needs to defend the judiciary as an institution by insisting that the government, above all other litigants, must not convert due process and judicious deliberation, which are supposed to promote fairness, into a punitive weapon.


House Democrats Pass Bill to Pay for Abortions around the Globe with U.S. Tax Dollars

If Democrats push forward with that proposal, it could ultimately fall to West Virginia Democratic senator Joe Manchin to determine its passage.

The Biden Illusion Crumbles to Dust

President Joe Biden addressed the nation and confirmed all of the worst suspicions of his critics.

The Biden Blowout Is Just Beginning

These days, a trillion-dollar spending bill is a trifle barely worth arguing over and the stuff of bipartisan consensus.

Joe Manchin Just Blew Up Rationale for Republicans to Cut an Infrastructure Deal

Manchin has made clear that any Republican that votes for the bipartisan charade is greasing the wheels for Democrats to ram through their entire agenda.

When You Understand What Happened to Simone Biles, It Makes Sense

There are things you can play through, and things you shouldn’t.

A Misleading Narrative about the Unvaccinated

You don’t have to look far on social media to find people contending that the remaining unvaccinated are overwhelmingly Republicans.

The Latest

FDA Could Grant Full Approval to Pfizer-BioNTech COVID Vaccine by Monday: Report

The granting of full approval of the vaccine may give impetus to entities looking for approval from regulators to institute vaccination mandates.

FBI Finds Little Evidence of Organized Plot for January 6 Capitol Riot

The FBI does not believe that far-right groups and supporters of former President Trump was coordinated, sources said.

Defense Secretary Austin Acknowledges Taliban Beatings of Americans in Kabul

Austin reportedly referred to the beatings as ‘unacceptable.’ 

GOP Lawmakers Call on ABC to Release Unaired Portion of Biden Interview

In the unaired portion, Biden made inaccurate comments about his son’s military service before correcting himself.

Biden Denies Rift with Allies over Afghanistan Chaos

Biden also denied that Americans are having trouble accessing the airport and claimed al-Qaeda is ‘gone’ from Afghanistan.

Florida to Withhold Funds from Two School Districts for Violating Mask-Mandate Ban

The state is targeting school administrators’ compensation.

Top Stories

Get our conservative analysis delivered right to you. No charge.

Most Popular

Something Is Wrong with the President

Something Is Wrong with the President

Biden’s latest interview, insistence that he was incorrectly briefed, and low profile amid the Afghanistan crisis all raise troubling questions.

No American Military Leader Should Ever Say What Lloyd Austin Said

No American Military Leader Should Ever Say What Lloyd Austin Said

Can you imagine Norman Schwarzkopf — to say nothing of Dwight Eisenhower or Douglas MacArthur — making this statement?

The True Extent of Biden’s Lies about Afghanistan

The True Extent of Biden’s Lies about Afghanistan

New revelations on Afghanistan reveal how many things President Biden said in recent days that were the precise opposite of the truth.

View More

Read More Feedzy

The Foxhole App - Trusted News Podcasts

Leave a Reply

Your email address will not be published. Required fields are marked *