In 1832 the Supreme Court under Chief Justice John Marshall ruled in the case of Worcester v. Georgia that state laws which denied land rights to Cherokee Indians violated federal law and were, therefore, invalidated. Then-President Andrew Jackson was infuriated by the ruling and simply refused to abide. The irreverent President showed his outright contempt for the SCOTUS decision by uttering the famous line, “John Marshall has made his decision, now let him enforce it.”
Jackson eventually reversed his opinion about the high court’s authority later that same year when South Carolina behaved in a manner that was disagreeable to him, and where the SCOTUS legal interpretations suited his agenda. Jackson could cite SCOTUS when it suited his purpose.
This past week, our acting President Joe Biden (or, our President who is simply acting), fully embraced his inner Andrew Jackson and essentially slapped the Supreme Court and Chief justice John Roberts right across the face. In having the CDC issue a “selective” edict that the Chinese coronavirus eviction moratorium would continue through October 3, 2021 (according to Reuters only for 80 percent of U.S. counties and only 90 percent of the population), the President issued an order that just a few weeks before, when the Court ruled 5-4, Congress would have had to enact any further extension through legislation.
The eviction moratorium was first enacted by Congress as a temporary measure during the early days of the pandemic. It expired in July of 2020 but was extended by then-President Trump through March of 2021. The Biden administration extended it once again through the end of this past June before extending it once again for an additional month through the end of July. That led to the case that came before SCOTUS. The Biden administration attorneys told the Court they would not extend the order beyond July 31.
The SCOTUS ruling was 5-4 that the ban could remain in effect through July 31 as there was such a short period of time left before expiration. After that, the Court made it clear that Congress was going to need to act to extend the moratorium further. Congress left town without acting, leaving evictions to resume August 1.
Have no fear, delinquent tenants, and have great fear constitutionalists and fans of private property rights. Enter Constitution-spurning Joe Biden and his trusted handmaid the CDC to the rescue. On Tuesday, in an act the President acknowledged was in defiance of the Court, he had the CDC extend the eviction moratorium through October. As Politico reported:
Biden said on Tuesday he had sought out constitutional scholars to determine the CDC’s legal authority and “what could they do that is most likely to pass muster constitutionally.” The “bulk” of the scholarship reviewed by the White House said additional action by the CDC would not pass muster in the courts, Biden said, adding that there were some “key scholars” who said it could.
It is important to note that in the Court’s 5-4 decision the four dissenting votes had favored the elimination of the moratorium immediately without waiting the few weeks to the end of July. In other words, the Court was essentially unanimous in declaring that Congress needed to take action for the moratorium to continue.
Our Constitution created the three branches of government that have mostly held us together for over 200 years. I say mostly because we did have that “incident” in 1861 known as the Civil War. That war, one could argue, was contributed to 30 years earlier by President Andrew Jackson planting the idea of “laws don’t matter” into the minds of citizens. In any case, Article One gave us the legislative branch, Article Two the executive branch, and Article Three gave us the judicial, which at the time specifically meant what became the Supreme Court.
While the Founders gave us their vison of three equal branches of government, they were only equal in theory. The Article One and Article Two folks had something the Article Three folks didn’t have. They had enforcement capabilities. The judiciary only could have its rulings respected, obeyed, and enforced to the extent that the legislative and executive branches were inclined to respect, obey, and enforce. As Jackson made clear in Worcester, if the other two branches of government chose to ignore the SCOTUS, there was little the Court could do.
The principle of judicial oversight was not completely clear in the Constitution, but it became anchored in our civic life in the 1803 case of Marbury v. Madison. That is where the concept of “judicial review” was firmly established by Marshall. With rare exception, and none as egregious as in the case of Jackson or Biden, it has been adhered to ever since.
What Joe Biden did this past week was to effectively place a moratorium on the Constitution. He looked right at SCOTUS and the American people and said “I know how you ruled. I don’t care.” This move accelerates what has been a general American journey toward becoming a post-constitutional country. For over a century we have been increasingly treating the Constitution more as a set of guidelines than as the definitive law of the land. Joe Biden just took what had been a gradual process and has attempted to skip to the end. He has picked up our constitutional tablets and smashed them on the rocks.
Where are the Republicans during all this, you ask? They are getting ready to make a “bipartisan compromise” and spend trillions of dollars we don’t have on infrastructure. This has been hailed as a good sign that the two parties are working together within our constitutional system to pass important legislation.
Constitutional system? What system? Joe Biden has just ruled the system is his own political Rorschach Test. It can be whatever he wants it to be. This is constitutional nullification (the concept of a jury ignoring the facts and the law and ruling upon its feelings in the case instead). Republicans need to stop placating and start acting defiantly.
What can they do? Well, for starters the Keystone pipeline runs through red states. How about if those states say that they are going to defy the federal government’s order to kill the pipeline and order that construction recommence? Joe Biden has essentially said that ending the eviction moratorium would cause people to suffer. Ending the keystone pipeline has caused tens of thousands of workers to suffer. Let’s go, Republicans. End that suffering. Build that pipeline.
Keystone is only offered as one example to demonstrate a greater point. In a piece I published last week I made it clear that the time has come for civil disobedience. What Joe Biden did this past week makes that call all the more clarion. When the rule of law is replaced with the decrees of tyrants, people very quickly begin to disrespect all law. Chaos follows. It is time for Republicans to stand up and show citizens that they are going to defiantly pushback on their behalf. If they don’t, citizens just might start to take things into their own hands. Dystopia has arrived at your front doorstep.
Just over 100 years after Jackson issued his challenge to John Marshall, Joseph Stalin is reported to have said to Winston Churchill when the British Prime Minister suggested that the Pope play some role in a post-war Europe, “The Pope? How many legions does he have?” The inference is clear. Moral authority does not matter to tyrants when it doesn’t possess the weaponry to impose that authority.
Joe Biden is a tyrant. That is exactly what he has just said about SCOTUS and its authority. Where are you Republicans? A nation turns its frightened eyes to you.