Norms for Thee But Not for Me?
On the CDC eviction moratorium, Joe Biden is busting democratic and constitutional norms.
I voted for Joe Biden. I was happy to. Yes, he’s far from perfect. But you know what? My vote was vindicated on January 6th. Policy qualms aside, our constitutional order is too important—sacred, even—for us to put it in danger by electing a man to the presidency like Donald Trump, whose sole guiding light is himself.
But because our constitutional order is so important, it’s essential that those of us who didn’t vote for Trump (and have been denouncing the cult-like, anti-constitutional tendencies that culminated in the violence of January 6th), call out the anti-constitutional, norm-busting moves of his foremost opponents. Indeed, the sources of America’s political decline are numerous, but one of them is each “tribe’s” lack of willingness to criticize its own members. In other words, we have to get back in the habit of criticizing people we’ve voted for. We don’t owe anyone unbending fealty. If memory serves, our ancestors fought a Revolution over that very question, no?
I say all that to preface the essay I published in The Bulwark this morning, which you can find here. In the piece, I build off my latest Merion West essay and react to the news that President Biden went ahead and had the CDC renew the evictions moratorium even though he knows the ban, absent Congressional authorization, does not pass legal muster and is going to be struck down by the Supreme Court.
I go into the details as to why that’s the case in The Bulwark, but for now I’ll stress why Biden’s move is so distressing: He’s breaking institutional norms and exacerbating polarization. How? I explain:
“His decision will further erode the Supreme Court’s legitimacy. The president has buoyed his supporters’ hopes with a policy win that will prove fleeting, and when they are stripped of that win by the Supreme Court, they will conclude that it’s the Supreme Court that is their problem. Don’t be surprised if calls for court packing and other norm-breaking proposals resume.
And the president’s action only worsens the unfortunate buck-passing dynamic among the branches of government—especially Congress’s eagerness to cede legislative authority to the executive branch. A president who is courageously committed to institutional norms would not assist Congress in its dereliction of duty. The disappearance of congressional strength atrophies our self-governing muscles. It cuts against piecemeal compromise, and it exacerbates fear of the other side. We’ve forgotten how to debate and work with one another—in the public square and in Congress. With his action this week, President Biden is not pushing back against this worrisome erosion of our self-governing capacities—he is adding to it.”
I helped elect Joe Biden to restore democratic and constitutional norms, not bend them. We have to all get back in the business of respecting our Constitutional order in big ways (not attacking the Capitol in a quasi-coup attempt to overturn a legitimate election) and small ones (not stretching executive power beyond its rightful limits in the context of, say, housing policy). It’s okay—in fact, it’s necessary—that we get back in the habit of denouncing any and all actions that run afoul of our Constitution, even when those actions are being taken by people we’ve voted for or still support today.
As Americans, we’ve been blessed with a Constitution that enshrines small-l liberal, democratic republican principles into law. That is a gift worth cherishing. To cherish it, we have to call out everyone—political friends and opponents alike—when they are exerting undue stress on it.
In other words, it's not ok to bend the Constitution even for a good end.