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The Other Members of Biden’s Constitutional Brain Trust Are Minow, Singer, and Dellinger

This story keeps on giving. Today, the New York Times dived deeper into the Biden Administration’s extension of the eviction moratorium. There are four names on the byline–you know it’s serious. And this story is very Pelosi-centric. Much of the narrative is told from the Speaker’s perspective. The aloof executive truly seems like something of a bystander.

First, we learn that White House counsel Dana Remus told Biden that an extension would not be lawful. Indeed, the White House was grateful that the swing justice (once again) squished, but didn’t want to try its luck:

Dana Remus, the White House counsel, briefed Mr. Biden about the opinion, saying Justice Kavanaugh’s warning precluded an extension. Policy officials, who wanted a moratorium to continue, nonetheless concurred that legal concerns meant the existing ban could not be extended, viewing it as a lucky break that they had another month to send out more housing assistance funds to soften the impact. According to one top administration official, it was like “winning something by the hair of your chinny-chin-chin.”

Second, Pelosi was pissed. She refused to accept Biden’s decision that he could not extend the moratorium. The Speaker demanded that Biden “Get better lawyers.” Sounds like something Trump would say.

The president demurred, saying the Supreme Court had made that nearly impossible. But the speaker continued pressing in what several White House officials said was the most animated they had seen Ms. Pelosi in years. . . .

Mr. Biden and his aides claimed their hands were legally tied by a recent Supreme Court ruling that strongly suggested — but did not explicitly say — that the nationwide evictions moratorium exceeded the government’s emergency powers under a public health law. But Ms. Pelosi did not accept that explanation.

“Get better lawyers,” Ms. Pelosi replied, according to a person familiar with the conversation.

I imagine that some of the lawyers who had advised Biden were named Garland, Johnsen, and Lederman. But their views were not to Pelosi’s liking.

Third, Pelosi turned to Laurence Tribe, who had personally advised her on the legality of the extension. Pelosi had called Biden three times!

Ms. Pelosi cited the opinion of Laurence Tribe, a Harvard Law professor who had argued to her that it would be lawful for Mr. Biden to extend the moratorium again. She repeatedly called Mr. Biden directly — no fewer than three times since last Friday.

Fourth, Remus took a closer look at the policy in light of Tribe’s arguments. And the lawyers took the Orval Faubus approach to constitutional law. There was no direct injunction barring the government from taking the action, so go for it!

As the political pressure mounted on Mr. Biden, Ms. Remus and other lawyers began taking another look at options that had looked less attractive at the beginning of the month.

There was widespread agreement, according to an official familiar with internal deliberations, that the Supreme Court’s action in June did not amount to a definitive and binding precedent. That meant, for the moment, it would not be illegal for the government to issue another ban — especially one more narrowly focused on hard-hit counties.

Fifth, the article acknowledges the concern I raised on Friday: a loss could narrow the scope of federal quarantine laws, handcuffing the executive branch in future crises.

Yet there was also widespread concern that imposing such a ban beyond July carried severe risk that the move would be swiftly blocked in court. And a ruling definitively declaring an evictions ban illegal, they worried, could narrow the C.D.C.’s ability to take emergency steps in a future crisis.

There was no answer that came without serious downsides, but Mr. Biden’s Monday instructions were to bring him all legally available options for the dilemma.

But the President apparently determined that the potential benefits outweighed the risks. What a shortsighted decision.

Sixth, we learn the identities of the other members of President Biden’s constitutional brain trust: Martha Minow, Joseph Singer, and Walter Dellinger:

Around noon on Monday, Martha Minow, a Harvard Law School professor consulted by the Biden legal team, said she received a call from the White House. In a subsequent discussion with administration officials, Ms. Minow and her husband, Joseph Singer, another Harvard law professor who is an expert in property law, endorsed the idea of a new, narrower moratorium.

The worsening pandemic had changed the facts on the ground, they agreed, and a more narrowly tailored ban to just the hardest-hit counties gave the government a better argument.

But even though it would be legal for the administration to take that step under current governing law, she also warned that there was a significant risk that the government would ultimately lose in court.

Another professor consulted by Ms. Remus, Walter Dellinger, a Duke University law professor and former senior Justice Department official in the Clinton administration, offered a similar take. Mr. Tribe declined to comment on his advice, but published an opinion essay in The Boston Globe on Friday defending the new moratorium as “plainly lawful.”

There you have it. Minow, Singer, and Dellinger warned Biden he would likely lose. That must be the “split” the President referred to. But he went with Tribe’s green light.

Seventh, the White House lawyers explained the upside: even if he loses, there will be a delay, allowing money to be distributed.

The executive branch legal team conveyed the complex consensus to the president: He could lawfully act, but such an edict was unlikely to survive long in court. Still, for Mr. Biden, it offered — at a minimum — a way to alleviate the political pressure to do something, at a time when his agenda can ill afford alienating allies in the closely divided Congress.

And that’s what Biden did. His own brain trust told him the Supreme Court would likely stop the action, but he went ahead with the idea to bide time. There we have it.

I still think it’s possible the Court enjoins the policy through an unsigned shadow docket entry with 1 or 2 dissents. The more we learn about this story, the worse the Executive Branch’s defenses will fly.

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The Other Members of Biden’s Constitutional Brain Trust Are Minow, Singer, and Dellinger

This story keeps on giving. Today, the New York Times dived deeper into the Biden Administration’s extension of the eviction moratorium. There are four names on the byline–you know it’s serious. And this story is very Pelosi-centric. Much of the narrative is told from the Speaker’s perspective. The aloof executive truly seems like something of a bystander.

First, we learn that White House counsel Dana Remus told Biden that an extension would not be lawful. Indeed, the White House was grateful that the swing justice (once again) squished, but didn’t want to try its luck:

Dana Remus, the White House counsel, briefed Mr. Biden about the opinion, saying Justice Kavanaugh’s warning precluded an extension. Policy officials, who wanted a moratorium to continue, nonetheless concurred that legal concerns meant the existing ban could not be extended, viewing it as a lucky break that they had another month to send out more housing assistance funds to soften the impact. According to one top administration official, it was like “winning something by the hair of your chinny-chin-chin.”

Second, Pelosi was pissed. She refused to accept Biden’s decision that he could not extend the moratorium. The Speaker demanded that Biden “Get better lawyers.” Sounds like something Trump would say.

The president demurred, saying the Supreme Court had made that nearly impossible. But the speaker continued pressing in what several White House officials said was the most animated they had seen Ms. Pelosi in years. . . .

Mr. Biden and his aides claimed their hands were legally tied by a recent Supreme Court ruling that strongly suggested — but did not explicitly say — that the nationwide evictions moratorium exceeded the government’s emergency powers under a public health law. But Ms. Pelosi did not accept that explanation.

“Get better lawyers,” Ms. Pelosi replied, according to a person familiar with the conversation.

I imagine that some of the lawyers who had advised Biden were named Garland, Johnsen, and Lederman. But their views were not to Pelosi’s liking.

Third, Pelosi turned to Laurence Tribe, who had personally advised her on the legality of the extension. Pelosi had called Biden three times!

Ms. Pelosi cited the opinion of Laurence Tribe, a Harvard Law professor who had argued to her that it would be lawful for Mr. Biden to extend the moratorium again. She repeatedly called Mr. Biden directly — no fewer than three times since last Friday.

Fourth, Remus took a closer look at the policy in light of Tribe’s arguments. And the lawyers took the Orval Faubus approach to constitutional law. There was no direct injunction barring the government from taking the action, so go for it!

As the political pressure mounted on Mr. Biden, Ms. Remus and other lawyers began taking another look at options that had looked less attractive at the beginning of the month.

There was widespread agreement, according to an official familiar with internal deliberations, that the Supreme Court’s action in June did not amount to a definitive and binding precedent. That meant, for the moment, it would not be illegal for the government to issue another ban — especially one more narrowly focused on hard-hit counties.

Fifth, the article acknowledges the concern I raised on Friday: a loss could narrow the scope of federal quarantine laws, handcuffing the executive branch in future crises.

Yet there was also widespread concern that imposing such a ban beyond July carried severe risk that the move would be swiftly blocked in court. And a ruling definitively declaring an evictions ban illegal, they worried, could narrow the C.D.C.’s ability to take emergency steps in a future crisis.

There was no answer that came without serious downsides, but Mr. Biden’s Monday instructions were to bring him all legally available options for the dilemma.

But the President apparently determined that the potential benefits outweighed the risks. What a shortsighted decision.

Sixth, we learn the identities of the other members of President Biden’s constitutional brain trust: Martha Minow, Joseph Singer, and Walter Dellinger:

Around noon on Monday, Martha Minow, a Harvard Law School professor consulted by the Biden legal team, said she received a call from the White House. In a subsequent discussion with administration officials, Ms. Minow and her husband, Joseph Singer, another Harvard law professor who is an expert in property law, endorsed the idea of a new, narrower moratorium.

The worsening pandemic had changed the facts on the ground, they agreed, and a more narrowly tailored ban to just the hardest-hit counties gave the government a better argument.

But even though it would be legal for the administration to take that step under current governing law, she also warned that there was a significant risk that the government would ultimately lose in court.

Another professor consulted by Ms. Remus, Walter Dellinger, a Duke University law professor and former senior Justice Department official in the Clinton administration, offered a similar take. Mr. Tribe declined to comment on his advice, but published an opinion essay in The Boston Globe on Friday defending the new moratorium as “plainly lawful.”

There you have it. Minow, Singer, and Dellinger warned Biden he would likely lose. That must be the “split” the President referred to. But he went with Tribe’s green light.

Seventh, the White House lawyers explained the upside: even if he loses, there will be a delay, allowing money to be distributed.

The executive branch legal team conveyed the complex consensus to the president: He could lawfully act, but such an edict was unlikely to survive long in court. Still, for Mr. Biden, it offered — at a minimum — a way to alleviate the political pressure to do something, at a time when his agenda can ill afford alienating allies in the closely divided Congress.

And that’s what Biden did. His own brain trust told him the Supreme Court would likely stop the action, but he went ahead with the idea to bide time. There we have it.

I still think it’s possible the Court enjoins the policy through an unsigned shadow docket entry with 1 or 2 dissents. The more we learn about this story, the worse the Executive Branch’s defenses will fly.

from Latest – Reason.com https://ift.tt/2VCalZV
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Texas Democratic Legislators File Kraken-Level Lawsuit Against Governor

Last month, Democrats in the Texas legislature fled the state in an effort to prevent the enactment of controversial election law reforms by denying the Republican majority a legislative quorum. This gambit may have done no more than delay the inevitable, so some of the same legislators are trying a new tactic: Filing a federal lawsuit.

In a suit filed yesterday, twenty-two Democratic legislators allege that Governor Greg Abbott, Speaker of the House Dade Phelan and State Rep. James White violated their constitutional rights. According to the complaint,

Plaintiffs are victims of a discriminatory scheme to violate their Constitutional Right to Assemble to redress grievances; speak; vote; travel, persuade members of the Congress of the United States to help support them in their quest to obtain and maintain all of the rights guaranteed to them and their constituents and the class they represent. All because of their protected status.

The suit alleges discrimination on a variety of grounds, including

(a) Race, in that certain Plaintiffs are either black or white,

(b) Creed, in that certain Plaintiffs have expressed a faith or belief that every eligible citizen has the right to vote,

(c) Color, in that certain Plaintiffs are distinguishable based upon the melanin in
their skin, and

(d) Natural origin, in that certain Plaintiffs are descendants of persons born in other countries.

The complaint is not particularly clear on the particulars of how the plantiff legislators’ rights have been violated, but it appears the plaintiffs are objecting to the Republican efforts to enact election law reforms, and perhaps to the threat to have the legislature’s sergeant-at-arms arrest those legislators who resist a quorum call. This may be hardball politics, but hardball hardly violates the rights of a legislative minority.

As it turns out, some of the named plaintiffs may not actually be on board with the suit. The Texas Tribune reports that at least two of the named plaintiffs did not authorize the suit to be filed on their behalf. That hardly suggests competent, ethical lawyering.

The suit was filed by former Rep. Craig Anthony Washington, who (according to the State Bar of Texas) is on disciplinary probation for professional misconduct. Washington previously had his law license suspended and also had some significant disputes with the IRS.

Some folks claim to “love” this lawsuit. I doubt the federal judge assigned this mess will agree.

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Texas Democratic Legislators File Kraken-Level Lawsuit Against Governor

Last month, Democrats in the Texas legislature fled the state in an effort to prevent the enactment of controversial election law reforms by denying the Republican majority a legislative quorum. This gambit may have done no more than delay the inevitable, so some of the same legislators are trying a new tactic: Filing a federal lawsuit.

In a suit filed yesterday, twenty-two Democratic legislators allege that Governor Greg Abbott, Speaker of the House Dade Phelan and State Rep. James White violated their constitutional rights. According to the complaint,

Plaintiffs are victims of a discriminatory scheme to violate their Constitutional Right to Assemble to redress grievances; speak; vote; travel, persuade members of the Congress of the United States to help support them in their quest to obtain and maintain all of the rights guaranteed to them and their constituents and the class they represent. All because of their protected status.

The suit alleges discrimination on a variety of grounds, including

(a) Race, in that certain Plaintiffs are either black or white,

(b) Creed, in that certain Plaintiffs have expressed a faith or belief that every eligible citizen has the right to vote,

(c) Color, in that certain Plaintiffs are distinguishable based upon the melanin in
their skin, and

(d) Natural origin, in that certain Plaintiffs are descendants of persons born in other countries.

The complaint is not particularly clear on the particulars of how the plantiff legislators’ rights have been violated, but it appears the plaintiffs are objecting to the Republican efforts to enact election law reforms, and perhaps to the threat to have the legislature’s sergeant-at-arms arrest those legislators who resist a quorum call. This may be hardball politics, but hardball hardly violates the rights of a legislative minority.

As it turns out, some of the named plaintiffs may not actually be on board with the suit. The Texas Tribune reports that at least two of the named plaintiffs did not authorize the suit to be filed on their behalf. That hardly suggests competent, ethical lawyering.

The suit was filed by former Rep. Craig Anthony Washington, who (according to the State Bar of Texas) is on disciplinary probation for professional misconduct. Washington previously had his law license suspended and also had some significant disputes with the IRS.

Some folks claim to “love” this lawsuit. I doubt the federal judge assigned this mess will agree.

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If The Supreme Court Rules Against The Eviction Moratorium, When Would Holdover Tenants Actually Be Evicted?

By this point, it should be painfully clear that the Biden Administration’s latest eviction moratorium is an effort to bide time. The President has admitted as much. Now, DOJ will oppose any adverse ruling, citing the risk of irreparable harm if tenants are evicted. For example, DOJ argues in a DDC brief:

Any injury to Plaintiffs caused by a temporary administrative stay is outweighed by the risk of illness and mortality if the moratorium targeting areas of high or substantial transmission is unnecessarily lifted at this moment when new cases are rapidly increasing due to the highly contagious Delta variant.

Eviction is not an immediate process. During normal times, it can take weeks, and event months to evict someone. The Dukeminier & Krier casebook (Chapter 7) lists several estimates. For example, New York requires 30 day notice, and the process can take 3-6 months. A study from the District of Columbia found the average time to evict was 114 days. In Massachusetts, the process could take as long as two years! All of these estimates are from normal times. Now, courts will have a massive, 18-month backlog. It will take forever for the clerk to file the cases, process them, issues summons, provide notice, schedule hearings, etc. Plus, states offer additional ways to challenging evictions based on hardships. I think the fears that millions of people will immediately be thrown on the street where they can spread COVID are entirely unfounded.

There is another property-related issue to address. The moratorium simply prevents landlords from removing tenants. It does not forgive the unpaid rent. Unless Congress takes action, millions of Americans will have massive debts they will never be able to repay. Their credit scores will be destroyed. And they will likely be unable to ever get a lease again, because of past failure to pay rent. This moratorium will have cataclysmic long-term effects for the housing market. The longer this process drags out, the more problems will be created.

I’ve been giving the Supreme Court vote count some more thought. It may not be 5-4. The Chief could be livid that the government is thumbing its nose at the Court. I also have to imagine that Justice Breyer, and maybe even Justice Kagan, are upset with this sort of cynical ploy. I almost wish the Court granted cert here. The shadow docket spares Acting SG the need to defend this policy live.

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If The Supreme Court Rules Against The Eviction Moratorium, When Would Holdover Tenants Actually Be Evicted?

By this point, it should be painfully clear that the Biden Administration’s latest eviction moratorium is an effort to bide time. The President has admitted as much. Now, DOJ will oppose any adverse ruling, citing the risk of irreparable harm if tenants are evicted. For example, DOJ argues in a DDC brief:

Any injury to Plaintiffs caused by a temporary administrative stay is outweighed by the risk of illness and mortality if the moratorium targeting areas of high or substantial transmission is unnecessarily lifted at this moment when new cases are rapidly increasing due to the highly contagious Delta variant.

Eviction is not an immediate process. During normal times, it can take weeks, and event months to evict someone. The Dukeminier & Krier casebook (Chapter 7) lists several estimates. For example, New York requires 30 day notice, and the process can take 3-6 months. A study from the District of Columbia found the average time to evict was 114 days. In Massachusetts, the process could take as long as two years! All of these estimates are from normal times. Now, courts will have a massive, 18-month backlog. It will take forever for the clerk to file the cases, process them, issues summons, provide notice, schedule hearings, etc. Plus, states offer additional ways to challenging evictions based on hardships. I think the fears that millions of people will immediately be thrown on the street where they can spread COVID are entirely unfounded.

I’ve been giving the Supreme Court vote count some more thought. It may not be 5-4. The Chief could be livid that the government is thumbing its nose at the Court. I also have to imagine that Justice Breyer, and maybe even Justice Kagan, are upset with this sort of cynical ploy. I almost wish the Court granted cert here. The shadow docket spares Acting SG the need to defend this policy live.

from Latest – Reason.com https://ift.tt/2X7uyXV
via IFTTT