Category: reason

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If you were hoping President Joe Biden might break from former President Donald Trump’s broad view of executive authority, don’t hold your breath. On Wednesday afternoon, Biden plans on extending the Centers for Disease Control and Prevention’s (CDC) eviction moratorium through the end of March.

That moratorium prohibits landlords—under penalty of stiff fines and even jail time—from evicting tenants for non-payment if they file a hardship declaration stating that they are unable to pay rent because of the pandemic and their eviction would result in them moving into a crowded living situation.

The Trump administration, through the CDC, first issued this moratorium back in September. It was extended through the end of January by the relief bill passed by Congress at the end of December.

Throughout the pandemic, federal housing agencies have issued a slew of eviction and foreclosure protections for residents of single-family homes financed or owned by a government-sponsored enterprise like Fannie Mae and Freddie Mac or with a federally insured mortgage. The CARES Act, passed in March 2020, paused evictions at multi-family properties with a federally insured mortgage and for renters receiving federal housing aid.

The CDC’s eviction moratorium is distinct in that it applies to all rental properties nationwide, regardless of any federally insured mortgage or participation in a government housing program. The sweeping nature of that moratorium, and the fact that it was initially issued by executive fiat, has sparked numerous legal challenges.

“There’s definitely separation-of-powers problems with the president just making up law or the CDC just making up law. That’s what happened under Trump with the CDC when they issued the national eviction moratorium,” says Luke Wake, an attorney with the Pacific Legal Foundation, which has filed multiple lawsuits challenging the CDC’s moratorium. “Biden is doing this on the same flawed statutory construction.”

The CDC has relied on a very broad interpretation of the Public Health Service Act to justify its initial moratorium. That law gives federal health officials the authority to make regulations “reasonably necessary” to prevent the interstate spread of communicable disease, including “inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.”

The potential for evicted tenants to move into crowded living situations, spreading COVID-19 in those environments, made an eviction ban a “reasonably necessary” means of combating the pandemic, according to the CDC.

That’s a sweeping claim of authority on the part of the agency, as some legal observers have noted.

“If Trump can use this authority to impose a nationwide eviction moratorium, Joe Biden (or some other future president) could use it to impose a nationwide mask mandate, a nationwide lockdown, or just about any other restriction of any activity that could potentially reduce the spread of the flu, the common cold, or any other disease,” wrote George Mason University law professor Ilya Somin at the Volokh Conspiracy in September.

Biden himself appears unwilling to embrace this expansive view of executive power when it comes to things like masks. The president initially claimed on the campaign trail that he could issue a nationwide mask mandate before deciding that that power was beyond the scope of the presidency. Last week he also explicitly called on Congress to pass another extension of the nationwide eviction moratorium through the end of September 2021.

All of that would suggest that even Biden believes congressional action is necessary to extend the CDC’s eviction moratorium.

“There’s a sense that [Biden] can’t really do it, or it’s legally questionable about whether he can legally do it, so he wants to get Congress to do something to cover his tracks,” Wake tells Reason. “The fact that Congress did pass a bill to provide a nationwide moratorium on evictions for a month speaks to the fact that when Congress wants to pass that kind of legislation, they can do it.”

At best, this suggests Biden has an inconsistent view of his own powers to fight the pandemic. More concerning is the possibility that the new president is letting politics, not legal principles, guide his executive actions.

If that’s true, Biden is forgoing the imposition of a nationwide mask mandate not because it would be illegal, but because it would be unpopular.

It raises the worrying possibility that the president could impose any number of pandemic-related restrictions, from a mask mandate to business closures, should he perceive that to be a politically advantageous move.

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Even among proponents of drug legalization, Columbia University neuroscientist Carl Hart stands apart for his unflinching honesty.

“I am now entering my fifth year as a regular heroin user,” the 54-year-old full professor writes in Drug Use for Grown-Ups: Chasing Liberty in the Land of Fear. “I do not have a drug-use problem. Never have. Each day, I meet my parental, personal, and professional responsibilities. I pay my taxes, serve as a volunteer in my community…and contribute to the global community as an informed and engaged citizen. I am better for my drug use.”

In a wide-ranging conversation with Nick Gillespie, Hart makes the case that responsible adults should be free to buy, sell, and use whatever substances they want to and that policy discussions about drug use have been polluted by bad information and moral posturing. He marshals an impressive body of academic research showing that virtually all currently illegal drugs can be and are used safely by millions of people, that drug prohibition has little or nothing to do with public safety, and that the United States would be a better place if its citizens were allowed to consume a much broader set of substances for pleasure.

“The Declaration of Independence guaranteed life, liberty, and the pursuit of happiness for all of us, as long as we don’t disrupt anybody else’s ability to do the same,” says Hart. “That means we get to live our life as we choose, as we see fit. Taking drugs can be a part of that and is a part of that for a lot of Americans.”

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In my previous post, I praised Biden’s first-day executive action repealing Trump’s travel bans. I am, to put it mildly, much less enthusiastic about his plan to revive the Trump administration’s nationwide moratorium on evictions, which the White House is also expected to issue today. The Trump policy—issued by the Center for Disease Control—expired on December 31. Biden intends to revive it and extend it until at least March 31.

For reasons described at length in my September post on the Trump moratorium, this policy is harmful, illegal, and likely to set a dangerous precedent—since the reasoning justifying it would also allow the CDC and the White House to issue orders shutting down almost any kind of economic or social activity. The fact that it will now be done under Biden’s aegis rather than Trump’s doesn’t make it any better. Whether the lipstick on the pig is Republican red or Democratic blue, it is still the same porker underneath.

I would add that Biden’s attempt to revive the moratorium is at odds with his own belated but welcome recognition that he does not have the authority to issue a nationwide mask mandate. Biden instead opted for the much more limited approach of requiring masks on federal property and in interstate transportation (which largely mirrors current practice).

As I pointed out to the Washington Examiner back in September, the same reasoning that is used to justify the eviction moratorium as a legally authorized public health measure, can also be used to defend a national mask mandate. Indeed, the latter is probably easier to defend, because the connection to curbing the spread of disease is much stronger and clearer.

My own view is that mask mandates may well be justified in some settings (though survey data indicates that the overwhelmingly majority of Americans already routinely wear masks, even in the absence of rigorously enforced mandates). On the other hand, I am far more skeptical about the supposed need for eviction moratoria. But neither can be imposed merely at the whim of the executive branch, and either would set a dangerous precedent for future administrations. Democrats who are comfortable with having Biden wield such vast discretionary power should consider whether they are willing to trust the next Republican president with the same sweeping authority.

Biden is far from the first president to take inconsistent positions on closely related issues. It could be that he and his advisers simply haven’t considered the potential contradiction between their positions on these two issues.

A more cynical possible explanation is that Biden genuinely doesn’t want to impose a nationwide mask mandate, because he knows enforcing it would be virtually impossible, and might lead to dangerous confrontations between recalcitrant citizens and law enforcement officers, at a time when tensions between the public and police are already high. But he may not want to simply say he’s against such an order on principle, for fear of offending members of his own party who strongly favor the idea. By contrast, Biden may not have any such reservations about the eviction moratorium.

Whatever the motivation for the discrepancy, I hope the administration reconsiders its commitment to the eviction moratorium. If not, as Josh Blackman notes, the various lawsuits against the Trump policy are likely to continue, now aimed at the new administration. I hope the plaintiffs prevail.

NOTE: The plaintiffs in one of the lawsuits against the Trump eviction moratorium are represented by the Pacific Legal Foundation, where my wife works. I myself have played a minor (unpaid) role in advising PLF on the case.

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Former President Donald Trump’s tenure started off with a loud debate over his inauguration crowd size. After his swearing-in, Trump insisted for months that he had attracted a larger crowd than his predecessor, former President Barack Obama.

The discussion seemed to never end. It ushered in a flurry of legitimate news reports seeking to debunk the president’s obvious lie—as if those organizations truly had nothing better to report on for the American public. It also attracted the characteristically stubborn, whimsical response that came to define the Trump administration: They were just adhering to “alternative facts,” according to then-Senior Counselor Kellyanne Conway. One can’t be sure what that means, but it was intended to acquit the president.

As Trump flew away from D.C. today via Joint Air Force Base Andrews, he could at least take comfort in the fact that his inaugural crowd size bested President Joe Biden’s, thanks to restrictions put in place after the January 6 Capitol riot as well as to curb the spread of COVID-19. Point for Trump? No, point for Biden.

To be clear, I care a negative amount about the great crowd-size debate of 2017, and all the crowd-size debates that followed. I’d rather us compete over whose crowd was the smallest, not the largest. Biden wins that trophy by a mile. Though it’s widely due to circumstances out of his control, perhaps we should work on making some parts of today the new normal for future inaugurations.

The cult of the imperial U.S. presidency has come to feel like a national religion in the last decade and change. Whoever assumes the executive title also inherits icon status: There were Obama “HOPE” t-shirts, Trump’s “Make America Great Again” hats, along with bumper stickers, flags, and Catholicism-inspired prayer candles featuring pols in saintly postures. Cries of “My president!” have become commonplace among a certain subset of online political types, sending a queasy message that whoever holds the office is a paladin worthy of hero-worship.

That obsession is decidedly unhealthy. The Founders intended the president to be a political figurehead and a government manager, checked in both roles by the people. “[T]he first thing [the Constitutional Convention] had to discuss was if there would be one chief executive or more than one chief executive,” said historian Ray Raphael in a 2017 interview. “People were very suspicious of anything that would resemble monarchical rule.” Asking a president to be more is not only an improper elevation of the role, it is also, as Trump proved to countless industries and individuals, a very risky betting proposition.

How do we put the imperial presidency back in its box? We can start by dialing back the pomp and circumstance of the inauguration, which sees people come from far and wide to flood the national mall so that a new president can take office in front of a sea of loyalists.

That wasn’t the case this year, thankfully. Even so, it appears that, as of this morning, the crowd-size discourse still wasn’t over. CNN’s Wolf Blitzer called the number of people at Trump’s farewell sendoff “pathetic,” and Jim Acosta noted seriously that it was “the smallest…of [his] presidency,” which we can presume was supposed to be the perfect full-circle “gotcha” as the nation witnessed the end to Trump’s time in the Oval Office.

I’ll take it.

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On his first day in office, President Biden will issue an executive action repealing Donald Trump’s travel bans. It will abolish both the 2017 travel ban covering several Muslim-majority nations, upheld by the Supreme Court in Trump v. Hawaii, and the 2020 expansion, which added several more countries to the list, including Eritrea, Kyrgyzstan, Myanmar, Nigeria, Sudan, and Tanzania. The move is an important step in the right direction, though much more remains to be done to reverse the damage done by Trump’s travel ban orders, and the weaknesses they revealed in our legal institutions.

There is no real doubt that Biden has the power to reverse the travel bans by executive action alone. If you buy the Trump Administration’s position on their legal status, they were decisions entirely left to the discretion of the president, which means a new president can repeal them any time he wants to, and for almost any reason. Co-blogger Josh Blackman, a leading academic defender of the legality of the travel bans, also recognizes that Biden can easily repeal them.

If you believe, as I and other critics do, that the travel bans were unconstitutional, it is even more clear Biden has the authority to repeal them. Indeed, in that event, he would have a legal duty to do so.

Getting rid of Trump’s travel bans has important symbolic and constitutional significance, in as much as it abolishes a set of policies that were clearly motivated by religious bigotry. Don’t take my word for it. Take that of Trump himself, who repeatedly equated his 2017 travel bans with the “Muslim ban” he notoriously promised during the 2016 campaign. I have previously addressed the argument that the bans were not discriminatory because they didn’t cover all the Muslims in the world (see here) and the claim that it is somehow improper to consider Trump’s motives here. The 2020 expansion was not as overwhelmingly focused on Muslims as the 2017 policies, and not as closely linked to Trump’s 2016 campaign promises. But it had elements of bigotry nonetheless, especially when viewed in combination with the earlier (and still ongoing) travel bans.

Legal and symbolic issues aside, Biden’s reversal of the travel bans can begin to reverse their awful real-world consequences. The travel bans had horrific effects on thousands of people, both would-be immigrants and refugees, and American citizens, including many who were cruelly separated from family members. The continuation of the travel bans would also damage the American economy, most notably because the addition of Nigeria to the list blocked new immigration from a nation that has provided us with one of our most successful and productive immigrant communities.

The supposed security rationales for the travel bans were bogus, and the supposedly “extensive” study backing them was no such thing. Indeed, by alienating key allies, barring refugees fleeing Islamist oppression, damaging America’s image, and providing propaganda opportunities to radical Islamists (who were happy to see them  adopted), the travel bans probably damaged American security interests much more than they facilitated them.

While Biden’s repeal of the travel bans is a valuable step, it does not and cannot fully address the flaws Trump’s policies revealed in our legal system. Biden’s order obviously cannot eliminate the double standards in current Supreme Court precedent, which permit discrimination in immigration policy of a kind that would be ruled unconstitutional in almost any other context.

The reversal also doesn’t fix the dangerously broad interpretation of 8 U.S.C. 1182 in Trump v. Hawaii, which effectively gives presidents virtually unlimited power to exclude any migrants they want, including those otherwise qualifying for admission under congressional legislation. This issue may be addressed by litigation currently underway challenging Trump’s more recent restrictions on work visas, in which a court has already struck down those restrictions on nondelegation grounds. The Supreme Court did not address nondelegation in Trump v. Hawaii, and a ruling striking down or narrowing Section 1182 could be one way to curb the ridiculously broad discretion the president currently enjoys.

That discretion might also be constrained if Congress passes the No Ban Act, which the Biden administration plans to include in the US Citizenship Act it will soon submit to Congress. At least for the moment, I am not optimistic that this bill can get through a closely divided Congress. But Biden’s willingness to push for it is nonetheless notable—and a sharp contrast with the Obama administration, which was unwilling to make immigration liberalization a significant element of its legislative agenda, when they had the chance to do so in 2009-11.

Finally, the Biden Administration would do well to disclose the study that supposedly justified the travel ban upheld by the Supreme Court in Trump v. Hawaii. Available evidence strongly suggests that study was, to understate the point, not actually what the Trump administration claimed it was. Given that the study was cited by the Supreme Court as one of the rationales for an extremely important precedent, it is important for us to know whether it was actually a put-up job.

Confirmation of the latter would not by itself prove that Trump v. Hawaii was wrongly decided (the outcome can be defended on various grounds even without reference to the study). But the true nature of the study should nonetheless affect both the Court’s and the broader legal community’s evaluation of the ruling, and could influence future justices in determining how broad a scope to give to its reasoning—and perhaps even in considering whether it should be overruled.

Despite some largely unavoidable limitations, Biden’s repeal of Trump’s travel bans is an important and valuable step. I hope it will be only the first of many improvements in immigration policy that collectively will reverse both the injustices of the Trump era, and at least some of those that predated it.

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