President Joe Biden’s decree unilaterally extending the eviction moratorium, which bars landlords from evicting delinquent tenants on COVID-19-related grounds, is clearly unconstitutional. He has admitted that it will likely lose in court, and he is right.
How Biden managed to get himself into this legal mess in the first place seemed a bit of a mystery — until now, that is.
As it turns out, the Biden White House reportedly sought legal justification for the moratorium extension from none other than Harvard constitutional law professor Laurence Tribe, according to the Washington Post.
Tribe is the same law professor who declared in December 2016, before then-President-elect Donald Trump was even sworn into office, that the victorious GOP candidate should be impeached on Inauguration Day for supposed constitutional abuses ranging from alleged violations of the Emoluments Clause to a State Department blog post touting the “winter White House” at Mar‐a‐Lago. A few weeks later, Tribe proclaimed Trump “must be impeached for abusing his power and shredding the Constitution more monstrously than any other president in American history,” which is a hell of an accomplishment, considering Trump had been president at the time for only two weeks.
Humorously enough, as CATO’s Gene Healy notes, Tribe is the same person who argued before Congress during the impeachment of President Bill Clinton that “an impeachable offense must itself severely threaten the system of government or constitute a grievous abuse of official power or both.” Put more simply, Tribe either has a dull legal mind, or he is just a partisan who believes the law can be abused or ignored for the “right” causes.
“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 for protecting struggling renters across the country,” the Washington Post reports.
It adds, “The private phone call between Klain and Tribe — held Sunday amid a national outcry over the expiring moratorium — set in motion a rapid reversal of the administration’s legal position that it could not extend the eviction ban. Tribe suggested to Klain and White House Counsel Dana Remus that the administration could impose a new and different moratorium, rather than try to extend the existing ban in potential defiance of a warning from Supreme Court Justice Brett M. Kavanaugh.”
Remus reportedly embraced the plan, even despite White House counsel having stated previously that the president has no legal authority to extend the moratorium. From there, it snowballed. Remus worked with Tribe, leading the White House, the CDC, and others to embrace unconstitutional extension.
It gets better. The White House allegedly sought out Tribe’s guidance on the recommendation of House Speaker Nancy Pelosi of California. Tribe confirmed later in remarks to the Washington Post that he had indeed consulted with Pelosi about the matter.
“It was an incredible whirlwind. It was extremely intense, and I feel very lucky to have been asked by anybody what I thought about this, because a lot of people would have been needlessly hurt,” he said.
Is that a legal or personal opinion?
Even Biden seems to realize what he is doing is unlawful.
“The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster,” the president told reporters. “There are several key scholars who think that it may, and it’s worth the effort.”
And by “scholars,” Biden apparently means Tribe, who once earnestly tried to extrapolate what sort of justice Kavanaugh would be based on a sports news article he had written as a student at Yale.
The New Yorker recounts:
Again, Tribe was not joking.
If Biden is in for a world of legal trouble for his moratorium extension, he can apparently thank Tribe, who has been anything but a sound and savvy legal mind since at least the Trump presidency.
