Biden administration's pathetic effort to justify illegal order

 Wall Street Journal:

The Justice Department on Friday filed its emergency defense of President Biden’s latest national eviction ban, and it’s almost enough to make you feel bad for the poor lawyer who had to sign it. Mr. Biden justified the lawless order as a way to buy time, and the attorneys don’t bring an argument that’s any better.

The government puts forth token claims that “factual circumstances have changed,” and the renewed order “differs from the prior eviction moratorium by targeting only areas of high or substantial transmission.” For the record, that includes 87% of U.S. counties, as of Friday night, up four percentage points in the past two days. All the big cities are covered. This is no good-faith attempt at tailoring.

The Justice Department’s real position is that legal technicalities require the judiciary to make a chump out of Supreme Court Justice Brett Kavanaugh. Recall the context: The original eviction ban was struck down by federal Judge Dabney Friedrich, but she stayed her ruling. When an appeal of the stay reached the Supreme Court, five Justices left it in place until the eviction ban lapsed.

But one of them, Justice Kavanaugh, agreed with the four dissenters that the order was illegal. He kept the stay to give Congress time to pass legislation authorizing the eviction ban. Congress did not, so Mr. Biden had the Centers for Disease Control and Prevention redo it.

The Alabama Association of Realtors is now back in front of Judge Friedrich, and it has enormous fun quoting President Biden and the White House as authorities against . . . Mr. Biden and the White House. It cites Mr. Biden’s press secretary as saying the Supreme Court “made clear” that “any further action would need legislative steps.” It also quotes Gene Sperling, a presidential adviser, who told the press that the White House had “double, triple, quadruple” checked, but could find no additional legal authority for even a “targeted eviction moratorium—that just went to the counties that have higher rates.” That was before the White House flip-flopped.

The Justice Department’s reply is that it simply doesn’t matter whether five Justices think the eviction order is unlawful. Why? Because under D.C. Circuit Court of Appeals precedent, “the votes of dissenting Justices may not be combined with the vote of a concurring Justice to establish a binding decision.”

The Justice Department implores Judge Friedrich to follow that line, instead of what it characterizes as mere “predictions about what the Supreme Court may decide.” If the judge is nevertheless inclined to block the eviction order, the filing asks for “an immediate administrative stay so that the Solicitor General may consider whether to seek emergency relief from the D.C. Circuit or the Supreme Court.”

President Biden wants a stay only as a means of delay. The government has been slow to disburse rental assistance, and so his solution is to keep abrogating landlords’ property rights for a few more weeks or months. Mr. Biden admitted this explicitly Tuesday, when he said that the eviction ban would most likely be struck down, but “by the time it gets litigated, it will probably give some additional time while we’re getting that $45 billion out.” This sounds a lot like the thief who says burglary isn’t illegal if you haven’t been caught.
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Biden was a poor excuse for a lawyer throughout his career and he appears to have gathered similar people around him to defend his illegal order. I do not think his order could be cured with congressional action either.