The Constitution requires all of Congress and the president to swear to uphold the Constitution. Yet, too often today, public officials of both parties ignore that. The Centers for Disease Control and Prevention’s (CDC) reinstating its eviction mortarium yesterday, after a majority of the Supreme Court held that it was illegal, is another example of this.
When passing the Affordable Care Act, House Speaker Nancy Pelosi (D-CA) did not even consider the constitutionality to be a serious question for Congress to consider, answering, “Are you serious?” when asked about it. Former Rep. Phil Hare (D-IL), at the time said, “I don’t worry about the Constitution on this, to be honest. I care more about the people that are dying every day that don’t have health insurance.”
The policy is what important to these members of Congress; the Constitution they swore to defend seems like a secondary concern.
When asked about the constitutionality of the CDC’s eviction mortarium, President Biden acknowledged that, “The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster.” So why did Biden do something he acknowledges is “not likely to pass constitutional muster”? Because, he says, “at a minimum, by the time it gets litigated it will probably give some additional time while we’re getting that $45 billion out to people who are in fact behind in the rent and don’t have the money.”
Biden appears to be buying time by litigating something that even he doesn’t seem to believe is likely constitutional. Again, policy first, constitutional duty second. Yesterday, Rep. Alexandria Ocasio-Cortez (D-NY) told him to do it for just this reason: “Even if it gets struck down, we need the administration to buy Congress time to authorize a larger, longer-term extension.”
Rep. Maxine Walters (D-CA) likewise encouraged the Biden administration to extend the mortarium regardless of what the Supreme Court had said, writing: “Who is going to stop them? Who is going to penalize them? There is no official ruling saying that they cannot extend this moratorium. C’mon CDC—have a heart! Just do it!”
Sadly, President Biden isn’t the only recent president to do this. President Obama said he didn’t believe the Defense of Marriage Act was constitutional, but would continue to enforce it.
Chief Justice Roberts, at the oral arguments criticized: “I would have thought your answer would be that the Executive’s obligation to execute the law includes the obligation to execute the law consistent with the Constitution.” Roberts continued, that “if he has made a determination that executing the law by enforcing the terms is unconstitutional, I don’t see why he doesn’t have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we’ll wait till the Supreme Court tells us we have no choice.”
Biden is likewise forcing the Supreme Court to have to tell the administration they have no choice so they don’t have to take the political heat of defending the Constitution themselves.
This wasn’t the way the Founders saw how our government should run. Instead, they saw our government as requiring one of civic virtue, where people would at least try and do the right thing even if it didn’t follow their preferred policy positions most of the time.
Were we not to have optimism that people could sometimes do that, as Federalist 55 wrote, then “there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.” This is what Benjamin Franklin meant when asked what kind of government we had, and he replied “A Republic, if you can keep it.”
Even if our leaders think they have the best policies in the world, following the right means of implementing them are important too. We must tell our leaders to give up the ends justifies the means method of government that too often prevails today and return to a government of civic virtue.