August 5, 2021

"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..."

"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, the person said.... Biden, who served as the top Democrat on the Senate Judiciary Committee, has known Tribe since the 1980s and frequently seeks his legal advice.... On Monday, Sperling told reporters there was no possible legal avenue for either extending the existing moratorium or enacting a new, more targeted eviction ban.... The next day, the administration reversed itself and said it had found a legal basis for the move — even as Biden publicly expressed doubt about the legality of his administration’s actions. 'The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster,' Biden told reporters, citing conversations with legal experts. 'There are several key scholars who think that it may, and it’s worth the effort.' A White House spokeswoman did not provide the names of other scholars the administration depended on to justify the ban."

From "Biden told White House chief to seek Harvard legal scholar’s guidance, leading to reversal on evictions/Ron Klain consulted with Laurence Tribe about the legality of a new eviction moratorium, helping to bring about a dramatic White House pivot" (WaPo).


Meade said...

A heads up for those who identify as left of center: This reinforces the perception shared by many (most?) Americans: The Democratic Party is the party of extra-legalism and crime.

Ann Althouse said...

David Begley writes:

"What does the retired University of WI law prof think about the legality of this new eviction ban? You know more than us and more than Tribe."

I'll answer:

I don't know how much Tribe knows, and what does "knows" even mean here? Being a conlawprof doesn't give you knowledge of what every provision means. It's more likely to cause you to see all the arguments for different meanings. It's an ethical or aesthetic choice whether you want to mix scholarship and political activism, not a matter of "knowing" more.

In this instance, there's something the President wants to be able to do, and the question was whether there was a defensible basis for it, and Tribe apparently showed him a way.

I'm not going to call that right or wrong as a matter of legal analysis — not without devoting hours of time to studying it. I have no opinion.

Ann Althouse said...

Skeptical Voter writes:

"Well Biden (and the faceless group behind Biden) didn’t like the legal advice they were getting from their regular lawyers. One might even call the Department of Justice and the White House counsel staff the “people’s lawyers”---since they are the lawyers who are supposed to advise the President, and are hired and paid for by the American taxpayer (albeit very indirectly) to do just that. Joe and the cabal didn’t like the advice they were getting---so they went “lawyer shopping”. And they found Larry Tribe—who probably never met a government overreaching he didn’t like. And he apparently gave them advice that what they wanted to do was A-OK.

"J.P. Morgan supposedly once said that he didn’t want a lawyer to tell him what he couldn’t do. He wanted a lawyer to tell him he could legally do what he wanted. I did a good bit of corporate and transactional work over an almost forty year legal career. And sooner or later—and usually sooner—in any discussion with a client, I asked them where they wanted to “wind up” at the end of the transaction. Once the client’s true goal was established the question for me was, “How can I help get them there in a legally defensible fashion?” That’s why one older client term for their business lawyer was “Counselor”.

"There’s nothing wrong with lawyer shopping. As Groucho Marx supposedly said, “If you don’t like my principles, I have others.” If you are going to lawyer shop, it’s best to keep it quiet. It’s rare, not to say unseemly, for a President to announce that he can’t legally do something—and then a day later, buoyed by a Tribe opinion, say he’s going to go ahead and do it anyway. Still I seem to recall President Obama doing something similar—telling audiences for years that he “didn’t have the power to something”—until he decided he was going to do it anyway."

Ann Althouse said...

Leora writes:

"It’s a slap in the face of the 95% of renters and 93.6% of homeowners who used the stimulus money they received from the government and/or their additional unemployment to pay their rent or mortgage.

"Oddly the Consumer Finance agency had not updated mortgage delinquency numbers on their website since December 2020 but the mortgage bankers association has been showing a steep decline in mortgage delinquencies including those in forbearance arrangements. First quarter delinquency rates of 6.38% are above the average of 5.33% but if the trend continued would be back in normal range by now. 30 day delinquencies are at a historic low.

"I am heartened that it appears that only about 1% of mortgagees have taken the opportunity to be delinquent without penalty. I expect the VA and FHA could get their delinquency rate back to normal pretty quickly if they just allowed people to re-amortize their mortgage over a slightly longer term or at current interest rates. They may be constrained by legislation or regulation to making the sort of adjustments that conventional lenders have already applied."

Ann Althouse said...

Alex writes:

"What's so infuriating about this is not just that they imposed a moratorium that they believed to be unconstitutional, it's that they did so because they know that no one will pay a price for it. No bureaucrat will ever be fired. Hell, no politician will pay a price at the polls. Certainly the attorney who signed off on some crackpot legal theory to justify this will face no professional rebuke.

"The ones who suffer will be landlords who have to go another two months without rental income, or families who will continue to delay making the necessary adjustments to their lives. Oh, and SCOTUS. This decision flies in the face of the Supreme Court's warning earlier this year, and it's end date of Oct 3rd is a direct slap in their faces. Once again, the reputation of a once respected institution is smeared with crap for short-term political gain by politicians, and cowardice by nine judges.

"But, no mean tweets. And really, isn't that what's important?"

Ann Althouse said...

Owen writes:

"Is Larry Tribe being too clever by half, advising a tactical end-around on the Supremes’ near-decision? Was this possible only because Kavanaugh left him a scrap of daylight (or so he thinks)? Does Kavanaugh feel like a fool right now? How long before somebody files an emergency petition for an injunction? …I am no litigator but I bet most litigators, even those adept at seeking equitable relief, are staring at their charts and wondering at the rocks and shoals that lie along Biden’s course."

I'll say:

I think the idea is to describe a new and more particularized emergency. It's not an extension of the old moratorium.

Ann Althouse said...

Temujin writes:

"There is so much disgust and cynicism dripping from chins around this country right now, and this is a classic example of why. We have had an onslaught of our 'leaders' over the last few years, looking at our laws and in front of the entire country stating out loud, "Nah...that doesn't work for us. It's not convenient. We've got things we want to do". The President, VP, Cabinet members, CDC, FBI, CIA, Congress, etc., etc., etc.

"Our entire leadership is corrupt. They know the Supreme Court told them the moratorium was unconstitutional on the first go round. So they've re-written it keeping landlords at the mercy of the...CDC? Hello? Does anyone out there remember voting for a CDC appointee to lead your country? Just when exactly did this happen? And explain how a small time property owner, trying to make their way, has to continue to pay utilities and mortgage on a property they are unable to collect on? Or sell? Or find new tenants who can pay? When did we turn into Cuba?

"'The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster,' Biden told reporters, citing conversations with legal experts. 'There are several key scholars who think that it may, and it’s worth the effort.'

"So they did exactly what Democrats do: they went out to find someone- anyone- who would give them approval to do what they were going to do anyway. Laurence Tribe, who has whittled what little crumb of credibility he has left down to a nub, was on the top of that list, followed closely by Joe the Surfer Dude (JD) from Venice, CA. President Klain was all in with going ahead and told Joe Biden what was going to happen. Mr. Biden unfortunately did not get the words right and admitted it was not legal, but...WHO CARES?

"And our press is still working on why Ron DeSantis wants to kill children in Florida, so they don't even know this is happening. And if they did, they'd not understand it until President Klain's staff explained it to them. Final Score: CDC- 1, 5th Amendment- 0.

"Nice country, if you can keep it."

Ann Althouse said...

Jack writes:

Several thoughts:

1. This will be among the counts included in Biden’s impeachment charges if the Republicans regain the House in 2022.

2. Imagine the furor if a conservative president went lawyer shopping to pose a moratorium on cancelling service for past due bills to internet providers and streaming video services. Only a furor because the providers are reliable Democrat contributors while small landlords are not.

3. Why isn’t there an emergency order from the courts stopping the moratorium’s implementation? Even Biden agrees that the order is contrary to a very recent Supreme Court decision. Are the courts so clueless to fall for the same order with different words

Mr Wibble said...

"Why isn’t there an emergency order from the courts stopping the moratorium’s implementation? Even Biden agrees that the order is contrary to a very recent Supreme Court decision."

It's important to note that there want a decision about the underlying issue, merely a decision by SCOTUS to not vacate a stay, IIRC, and a warning from Kavanaugh. Basically SCOTUS turned away at the last minute and now we're paying the price.

I expect more decisions like this from the Biden Admin. Heck, it wouldn't surprise me if they attempt to ram through some sort of amnesty or opening voting to illegals prior to the 2022 elections, especially if they think that the GOP will regain power.

Skippy Tisdale said...

the administration could impose a new and different moratorium, rather than try to extend the existing ban in potential defiance

Goodness! How Putinesque!