Some observers have described what we’re living in now as a “post-Constitutional America.”
OK, we still technically have a Constitution, and we can go to Washington, D.C., and look at it under glass at the U.S. National Archives, but it gets ignored by the government so often that it feels as if we might as well not have one at all. It often seems the only people reading the Constitution these days are the ones looking for loopholes.
Never mind that during the 2020 campaign, Biden vowed to honor “the rule of law, our Constitution.” And never mind that he constantly trashed President Trump’s “assault on the rule of law.”
Jonathan Turley has a new article at The Hill about what Biden is actually doing in office to violate the Constitution and how the left cheers him on when he does it. Case in point: Biden’s extension, in a “knowingly invalid” way, of the moratorium on evictions.
Set aside for a moment the concern for those who can’t pay their rent — there should be concern on both sides, for the lessees and the lessors, who in many cases are barely hanging on — and take a look at this issue from the standpoint of the rule of law.
That’s what the Supreme Court had to do a few weeks ago when it ruled on the authority of the Centers for Disease Control and Prevention to impose such a moratorium. The CDC had argued that federal law gives it the authority to “make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.”
(This seems like a good place to mention that if the Biden administration were really trying to prevent the introduction, transmission or spread of communicable diseases, it wouldn’t be welcoming in thousands of COVID-infected immigrants at our southern border. But I digress.)
Anyway, Turley severely criticized the CDC’s argument, saying it would give that governmental agency “authority over huge swaths of our economy to avoid even the possibility of the ‘introduction’ or spread of a disease. It means that a Constitution designed to prevent tyranny and authoritarianism becomes largely irrelevant if you put on a white lab coat.”
In the case Alabama Association of Realtors v. Department of Health and Human Services, the Supreme Court ruled 5-4 that the moratorium could be kept in place but, according to Turley, “left no question that a majority of justices ultimately view the CDC order as unconstitutional.”
Justices Thomas, Alito, Gorsuch and Barrett had wanted to suspend the moratorium immediately, to make it clear that it was beyond the CDC’s constitutional powers. The fifth vote to do that would have come from Brett Kavanaugh, but he decided that since the moratorium was set to expire soon, anyway, he would just allow it to expire in order to facilitate an “additional and more orderly distribution of the congressionally appropriated rental assistance.”
It was an odd move, motivated, it seems, by practicality, but Kavanaugh was still agreeing with the minority on the larger point that this is supposed to be done only by an act of Congress, not a CDC order.
Many of even the most left-wing legal scholars who advise the Biden administration — including Biden’s own White House counsel — said that giving the CDC this authority was unconstitutional. But Biden was not put off and said he had found “several key scholars” who thought trying again with another order might “pass constitutional muster” and would be “worth the effort.”
The “several key scholars” are thought to be just one, actually: the unhinged, Trump-hating Harvard law weasel Laurence Tribe, whose superpower is being able to rationalize any abuse of office, no matter how objectionable, from packing the Supreme Court to spending billions under Obamacare without congressional approval to impeaching Trump as a racist and domestic terrorist.
I am not kidding. If anyone reads the Constitution looking for loopholes, it’s him.
Tribe apparently assured Biden that even though the court believed the original order by the CDC was unconstitutional, this would be a new, different order and thus would have to be ruled on again. So it would buy time for the CDC to do as Biden wanted and issue another order before SCOTUS could rule on that one. It’s hard to imagine anything more disingenuous.
As Turley explains, “It is like being given a parole for stealing a BMW and then immediately stealing a Lexus because it is a different car. The problem was the act, not the make of car.”
For doing this, Biden was praised by leftists for his strong leadership and “commitment to social justice,” even though his act put a few more frays and tears in the already-worn Constitution. He took an oath to preserve, protect and defend it, but he’s doing exactly what he said he wouldn’t do: use a pandemic as an excuse to abuse the law.
If Biden really wanted to help renters who still lack income, he could have done a lot for them without ripping at the Constitution and shelling out more mega-billions.
How about using some of that great “leadership” ability to create conditions favorable to getting back to work and school and other normal activities? That would, of course, include closing the southern border to keep the spread of COVID to a minimum and avoid undue strain on our medical facilities. But no.
Here’s another example of the Biden administration trying to build up its own power by tearing down the Constitution: the relentless attack on former President Trump, meant to destroy him by any means necessary. John Eastman and John Yoo have written a good opinion piece about this for Fox News.
This effort has been going on since Biden first became a candidate, but the latest encroachment is especially shocking: His administration is intent on waiving Trump’s right to confidential communications with his closest aides.
Democrats who run House and Senate committees want to know everything in every conversation having to do with election fraud and have issued subpoenas to former Justice Department officials such as then-acting Attorney General Jeffrey Rosen, then-Assistant Attorney General Jeffrey Clark and U.S. attorneys in Georgia and New York.
Under Article II of the Constitution, the Justice Department should be able to reject these demands, as the president has the right to obtain frank opinions from his principal officers. This has been very well established in the courts. In other words, butt out, Congress.
Eastman and Yoo write: “While Congress has a right to investigate the events leading to the terrible riot of January 6, it does not have a right to override the constitutional prerogatives of an independent branch of government.” Indeed, they write that if Congress gets away with this, they might just as easily force the Supreme Court justices to reveal their deliberations about election fraud cases. Why not?
If Biden’s “Justice” Department refuses to withdraw its waiver of executive privilege against President Trump, then Trump needs to fight back in court with everything he’s got, to protect that right for himself and future presidents, such as the Republican one who will win in 2024.
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