EDITORIAL: Biden extends eviction ban, knowing it’s likely illegal

Democrats and their partisans have spent five years mewling about how their political foes pose an existential threat to democracy, the planet, the rule of law and just about everything else. So it was ironic this week when President Joe Biden caved to progressives and again extended a federal ban on evictions while acknowledging the move is likely illegal.

Imagine for a moment that Donald Trump still occupied the Oval Office. What might the response have been if he announced he was going to issue a controversial executive order … on, say, limiting abortion … that he knew was constitutionally suspect but didn’t care. It’s not hard to imagine Speaker Nancy Pelosi babbling on about “lawlessness” and threatening a third impeachment.

Yet on Tuesday, Mr. Biden reversed course and announced the CDC would again enforce an eviction moratorium, this time through September. The president’s comments were instructive. “The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster,” Mr. Biden admitted. “But there are several key scholars who think that it may and that it’s worth the effort.”

The administration’s gambit buys time while the matter is litigated. But it also comes with a risk. The Supreme Court has yet to rule on the matter, although lower court judges in seven of 10 challenges to the moratorium have cast a dubious eye on the ban. In one of those cases, the high court voted 5-4 to keep in place the judge’s decision to stay enforcement of his ruling that the CDC eviction moratorium violated the Constitution. One of those who voted in favor of upholding the stay, Justice Brett Kavanaugh, made it clear that he believed the agency had exceeded its authority.

The president’s move will likely force the Supreme Court’s hand when it reconvenes in October — and it’s unlikely that Mr. Biden and his progressive bedfellows will cheer the result. The idea that Congress has ceded to CDC bureaucrats unlimited powers to deal with anything it deems a public health emergency runs counter to our constitutional principles. This overreach may give the justices a prime opportunity to restrain the runaway administrative state.

Of equal importance, the controversy shines a bright light on the ineptitude of the public-sector bureaucracy to nimbly react to the reality on the ground. Congress over the past 17 months has allocated $47 billion for tenant and landlord relief, but state and local governments have moved just $3 billion into the hands of those who need it, the Wall Street Journal reported this week. Now imagine government-run health care.

It’s become increasingly clear that some liberal Democrats don’t want the eviction moratorium to end. But the ban is unsustainable in a free economy. It’s also unconstitutional — and Mr. Biden knows it.