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Wednesday, August 04, 2021

Embrace the judicial departmentalism (Updated)

I do not know enough to say whether the CDC's new eviction moratorium is constitutionally valid, although if Steve believes it is at least an open question, I am inclined to think it must be.

I would have loved for Biden to own the judicial departmentalism underlying the new policy: "Most constitutional law professors believe the policy is constitutionally invalid, but we have found some who disagree. Lawyers within the executive branch disagree. The courts may rule against us, as is their power. But for the moment we believe the policy is valid and will pursue it. And if it turns out we are wrong, we have bought ourselves some time. And in this case, we are willing to risk the attorney's fees and political fallout." I have no problem with the executive taking that position, regardless of my sympathy for the policy at issue.

Update: Mark Tushnet makes a similar argument, framing it in terms of norms v. law v. constitutionalism. But he gets at the same point: Biden and the CDC are not not enjoined from stopping evictions and can continue to pursue what they view as the best course until such injunction comes. And they can balance the benefits of even temporary relief against the cost of being liked to Orval Faubus.

Another Update: This Washington Post op-ed shows how far into judicial supremacy much of the commentariat fallen. The unexplained votes of four Justices to vacate a stay of an injunction pending appeal plus the view of one Justice--announced without full briefing or argument--that the policy is unlawful means any effort by the administration disregards the courts, the rule of law, and the Constitution. The possibility that the one Justice whose views we know might change his mind is "unlikely," therefore the CDC is acting in a constitutionally violative manner in trying. This eliminates Holmes' bad person (which Tushnet references), who is no longer entitled to try to predict what the courts might do.

The piece ends on this note:

If the Trump administration had ignored a direct warning from the Supreme Court, Democrats would rightfully line up to condemn the president. Mr. Biden does not get a pass on the rule of law because his heart is in the right place.

Nothing like some uninformed both-siderism to complete the puzzle. But note how this moves the line. The problem here is not that the executive ignored an injuncti0on, which the cannot do. The problem here is not that the executive ignored binding precedent created by a Court majority, which he can do. The problem here is that the executive ignored a "direct warning" (is there any other kind?), which the Post regards as an equivalent affront to the courts and the Constitution.

Posted by Howard Wasserman on August 4, 2021 at 08:45 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink

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