Monday, August 30, 2021

Part I

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"A Breathtaking Amount of Authority" — Supreme Court Rules 6-3 to Strike Down President Biden’s CDC Eviction Moratorium

A constitutional form of self-government is an extremely rare political and civilizational achievement. The difficulty, of course, is keeping it. In the American constitutional order, the separation of powers makes very clear that all three branches, the executive, the legislative, and the judicial, have important roles to play. But at the end of the day, it is the role of the Supreme Court of the United States at the very top of the judiciary branch to establish what is and is not consonant with the Constitution.

The court fulfilled this responsibility in a 6-3 ruling handed down last Thursday. It’s a big story. It gets to so many issues at the intersection of the Christian worldview and the issues of our headlines these days.

We’re talking about the court 6-3 ruling striking down the Biden administration’s effort to try to continue a moratorium on evictions for failure to pay rent in the context of the COVID-19 pandemic. It’s a very big story. It was already a big story before the 6-3 ruling handed down by the Supreme Court and the ruling that struck down the Biden administration’s plan.

In one of the strangest actions ever undertaken and admitted by an American president, President Joe Biden weeks ago announced that he would be extending through the Centers for Disease Control a moratorium on evictions that the CDC had handed down and that had originally been a part of the COVID-19 legislation.

But long ago, those moratoria had expired. What we were looking at then was the fact that there was an incredible intrusion into the private market, into the private economy in the United States, in which, of all things, the Centers for Disease Control, claiming the mandate of fighting a pandemic, actually intervened in the contracts between private individuals when it comes down to rent. You’re looking at the fact that they were putting many landlords at grave risk of losing their properties.

Now there are all kinds of issues here, but the big issue to recognize here is that President Biden basically knew that his action was unconstitutional, but he took it anyway. Now that is arguably a denial of the very oath of office that he took to uphold the constitution. He knew that it was likely to be ruled as unconstitutional. Again, unconstitutional doesn’t mean you just broke a rule. It meant that you had defied the constitution or you have broken one of its clear principles.

In this case, the principle of limited government and the separation of powers was clearly violated by the CDC plan, and that was undertaken at the instigation of the president. The president said, even as he made his announcement, that he had good reason to believe that he was acting unconstitutionally.

In that 6-3 ruling that was handed down on Thursday, the Supreme Court resoundingly said that the president was acting unconstitutionally and the 6-3 decision was itself a demonstration of the rightful operation of our constitutional order. Either we do operate by the constitution or we do not. If we do not, then there are no limitations whatsoever upon political power, especially that undertaken by the executive branch and regulatory agencies. Let’s look at some of the issues here. They really are fascinating.

First of all, the ruling that was handed down on Thursday is unsigned, but it did reflect the fact that two-thirds of the sitting justices of the Supreme Court of the United States were very clear in saying that the moratorium was not only unconstitutional, but it was unconstitutional on its face. Furthermore, it is unconstitutional in a way that demonstrates the very danger of a government that is out of control.

The justices stated that the Centers for Disease Control “has imposed a nationwide moratorium on evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination”. The justices went on to say, “It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.”

Now that’s strong language coming from the Supreme Court, and the language just gets stronger. The court went back to the 1944 statute known as the Public Health Service Act that was passed by Congress then, back in the 1940, signed into law by President Franklin Delano Roosevelt. Like any statute, it has to have clear language. If there is no clear language, it doesn’t really pass that kind of legislative muster.

That particular statute goes on to say, “For purposes of carrying out and enforcing such regulations, the surgeon general may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings and other measures as in his judgment may be necessary.”

Now the executive branch authority has been delegated more recently to the Centers for Disease Control, but the point is you will notice that what we have here is a very classic example of responsible government that comes down to the term enumerated powers.

Now enumerated powers are powers that are explicitly granted by name. They’re actually, in one sense, numbered. That’s why they are enumerated, power one, power two, power three, power four. The whole point of constitutional self-government is that when you do have enumerated powers, the government may not exceed those powers. It may not invent new powers.

Congress has the right to legislate such powers, the President has the right to sign them into law. But once that happens, the executive branch and its regulatory agencies can’t just make it up. The justices, in the ruling on Thursday, stated that the lower district court had rightly ruled that the Centers for Disease Controls’ moratorium “exceeded its statutory authority.”

Well, I just read to you the statutory authority. It is clearly not there for any kind of action such as a widespread order that there’d be a moratorium on evictions for non-payment of rent.

Speaking of the statutory powers that were given here, the court’s majority went on to say, “These measures directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself.” The majority went on to say, “The CDC’s moratorium, on the other hand, relates to interstate infection far more indirectly.” Here the court is speaking of the logic of the CDC. “If evictions occur, some subset of tenants might move from one state to another and some subset of that group might do so while infected with COVID-19.”

The justices go on to describe this logic as a “downstream connection”, which is the courts way of saying it is not a logical extension of this kind of statutory authority. To the contrary, it is a usurpation by the CDC of powers that it is clearly not granted.

Speaking of the Biden administration, the court said, “Indeed, the government’s reading of the statute would give the CDC ‘a breathtaking amount of authority’. It is hard,” said the justices, “to see what measures this interpretation would place outside the CDC’s reach, and the government has identified no limit”–now this means the Biden administration–“beyond the requirement that the CDC deem a measure necessary.”

Now that is just a couple of steps. Maybe it’s just half a step from outright tyranny. If you can have any part of the government, including the Center for Disease Control, do anything that its own leadership might deem to be necessary, then government will do anything, it can do anything, and you don’t want to understand just how encompassing and dangerous that anything can be.

The court’s majority asked this question, “Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable, require manufacturers to provide free computers to enable people to work from home, order telecommunications companies to provide free high-speed internet service to facilitate remote work?” The justices then said, “This claim of expansive authority, under the statute, is unprecedented.”

“Since that provisions enactment in 1944,” said the justices, “no regulation premised on it has even begun to approach the size or scope of the eviction moratorium.” And the courts majority went on to say, “It is further amplified by the Centers for Disease Control’s decision to impose criminal penalties of up to $250,000 fine and one year in jail on those who violate the moratorium.” They just made it up.

Part II

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Constitutional Self-Government Is a Rare and Precious Civilizational Achievement — And it Is Fragile

But there’s another essential issue here addressed by the court’s majority when it comes to constitutional self-government. The justices went on to say the government might have the authority to take such an action. It didn’t say that the government would have the authority, but it might have the authority if congress actually legislated the issue, passed the statute, and then it was signed into law by the president.

Now it still might not be constitutional, it might require some constitutional review thereafter, but at least that would be a responsible action by congress. Congress took no such responsible action. But without congress acting, without legislation being adopted, the principle of constitutional self-government says regulatory agencies are not free even to seize upon a pandemic to extend, what they described, to a downstream connection in order to justify an unconstitutional action.

Now the three liberal justices joined in a signed dissent from Justice Stephen Breyer, saying in sum that even though there was no statutory authority, under the context of COVID-19, this was a good thing to do and the government should do good things. In the main, the three dissenting justices really didn’t make much of a constitutional argument.

That gets to another issue of our concern today on The Briefing. Sometimes people will say the government ought to do that, and it might be a good thing, they propose, the government ought to do. The issue could be debated on its merits. Is it a good thing? Is it a bad thing? Is that the role of government? Is it the role of someone else? Should it be done at all? If so, who should do it? Those are legitimate questions.

But when it comes to this kind of issue, the point is that we either are a constitutional republic ordered by law and the constitution or we are just a government a step away from tyranny at any moment that can decide to do anything even beyond the powers of statutory law, just in order to do what an executive branch or the regulatory governmental agencies might decide is a good thing to do.

Trust me, the government is filled at every level with people who keep coming up with what they consider to be good things to do, that the government should do, whether or not there is any statute to authorize it, whether or not congress has acted, whether or not a president has signed legislation adopted by congress, whether or not it is allowable and authorized by the United States constitution. But that whether or not is all the difference between a government that is limited and a government that is tyrannical.

The Democratic left showed its power in basically forcing by its political influence the Biden administration to announce the extension of the moratorium. Furthermore, you have the regulatory state, the administrative state that would love the precedent of this kind of intrusion into the nation’s economy in the name of trying to limit a pandemic or anything else, because government can always come up with a cause.

Some people would argue, well, let’s just put the constitution aside because there are people who need help. But once you do that, the government loses its legitimacy altogether. It might do what you want for just a season, but it will cease to be a functioning constitutional government thereafter. Another fundamental issue that’s revealed in this is just the basic question as to which part of our society would be actually better and more efficient at housing more people more economically and to greater advantage. Is it the private sector or is it government?

If you think it’s government, you’re going to have to face the fact that even without the political and economic arguments, the facts are government is simply no good at pulling anything on this scale off. Proof positive of that is the fact that the states are sitting on untold billions of monies coming from the federal government in order to help the rent crisis, but government isn’t even competent months later at getting much of that money out. Do you really want them building the housing, running it?

But that’s actually a different issue. It’s a different question. The most fundamental issue here is whether or not we are a constitutional form of government. We should be very thankful that a clear majority of the Supreme Court affirm that we are a constitutional republic as recently as last Thursday.

Part III

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“I Don’t Think Any Member of the Court is Living In Pluto or Something” — Justice Stephen Breyer Faces Pressure From Liberals to Retire

But next, as we think about the Supreme Court of the United States, it’s important to recognize that was a 6-3 decision, and here’s something we just have to acknowledge. You really are looking at a political divide not only in the country, but also on the nation’s highest court.

Now you might respond by saying the court is non-partisan. Yes, that’s true. But every one of the presidents who has made every one of the nominations is partisan. Presidents are the very head of their political party, whether Republican or Democratic.

When you look at the 6-3 vote that was reflected in that ruling on Thursday, you had the six justices appointed by Republican presidents versus the three justices appointed by Democratic presidents. The deans, so to speak, of the more liberal wing of the Supreme Court, after the death last year of Justice Ruth Bader Ginsburg, is Justice Stephen Breyer. At age 83, he is now the oldest justice.

The Democratic left has been putting incredible public pressure on Justice Breyer to retire, to retire as soon as possible, so that President Joe Biden can appoint a liberal successor, lest something happened whereby President Biden would not be able to get a nominee through the Senate or, for that matter, something could happen so that the Democrats actually lose their razor-thin control of the Senate.

The political left is very aware of the fact that with a 50-50 split in the Senate, the only way Democrats alone could get a Biden nominee through the Senate is with the vote of the vice president that would break a tie. But there we note that if they were to lose just one of those seats.

When you consider the age of some senators, including some Democratic senators, and, trust me, the political left has their birthdays very much written in red, and when you consider the political composition of their states, there could well be a swing that would rob the Democrats of the very thin majority they now have.

That means that according to the calculations of the political left, every day that Justice Stephen Breyer stays in office, on the bench, is a risk to the seat and to the seat being held under liberal control. But Justice Breyer has been basically unresponsive to this kind of pressure. The President of the United States has been careful following decorum not to make any public comment as to whether or not Breyer should just go ahead and retire.

Adam Liptak, veteran reporter about the Supreme Court, ran an article on The New York Times in Saturday’s edition. The headline was, “At 83, Breyer, the oldest justice, says he’s weighing the right time to exit.” Liptak writes, “Justice Stephen G. Breyer says he is struggling to decide when to retire from the Supreme Court and is taking account of a host of factors, including who will name his successor. ‘There are many things that go into a retirement decision,'” he said.

Interestingly, the liberal Breyer quoted the late conservative Justice Antonin Scalia as having told him, “I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years.” Justice Breyer affirmed the wisdom, as he would have it, of Scalia’s statement, going on to say that such issues will inevitably be a part of the psychology of his decision about when and whether to retire.

Now Justice Breyer is undoubtedly feeling even more pressure because of the desperation of the political left and of its legal team, precisely because the late Justice Ruth Bader Ginsburg, who had been the liberal heroine of the court, held on even though she was both aged and sick. When she died, it was President Donald Trump who got to make the nomination of Justice Amy Coney Barrett, switching that seat from liberal to conservative. The political left is just desperate that that not happen again.

By the way, it’s interesting that in giving the interview to The New York Times, representatives of the Supreme Court justice had indicated that he would make no comment concerning whether or not he would retire. But the justice did make a comment, and we just talked about those comments.

But he also said, “I’ve said there are a lot of considerations.” His last statement reported in this article is this: “I don’t think any member of the court is living in Pluto or something.” It’s a very unusual, but very clear way for Justice Breyer to say to the left-wing of his own party, “I’m not on Pluto.” The fact that he had to say it tells us something.

Part IV

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Concept of Parole Holds Out the Opportunity of Release from Prison to Those Convicted of Certain Crimes Under Certain Circumstances — What About the Assassin of Robert F. Kennedy?

But, finally, today, as we’re thinking about major legal issues, let’s think about crime and punishment. Let’s think about a headline that just resounds through American history. Again, the headline comes to us like this, “Board,” that his parole board, “urges release of John F. Kennedy’s assassin.”

This is Sirhan Sirhan, who was convicted of the assassination of the United States Senator Robert Kennedy as Kennedy was ascendant in the race for the 1968 Democratic presidential nomination. Having just claimed victory in the crucial California primary on June the 5th, 1968, Robert Kennedy was speaking at the Ambassador Hotel in Los Angeles when, after giving a resounding speech basically claiming the Democratic nomination, Kennedy walked through the kitchen after he had given a speech and was shot in the head by Sirhan Sirhan.

Sirhan, it was revealed, was offended by Kennedy’s public support for the sale of certain weapons by the United States to Israel. He was animated by what he identified as the Palestinian cause. He had been identified himself as having a Palestinian heritage. It was Kennedy who was shot in that horrifying year of assassinations of 1968.

I am old enough to remember the national horror in the assassinations of Martin Luther King, Jr. and then Senator Robert F. Kennedy, both of them in 1968, relatively close, in just a matter of weeks. America was experiencing a national horror that seemed to unfold day-by-day and week-by-week in that pivotal year of 1968.

Sirhan Sirhan was convicted of the crime of assassinating Senator Robert F. Kennedy, who, by the way, had served as his brother’s attorney general. He was attorney general of the United States under President John F. Kennedy. Sirhan has had 16 different parole hearings since that time. This is the 17th. This time, at least a subset of the California parole board went on to say that he should be paroled. He is 77 years old, by the way. We’re looking at the fact that his crime took place now well over 50 years ago.

Does that make a difference? In Christian worldview analysis, if we’re thinking about crime and punishment, does this make sense or does it not make sense?

The arguments for parole come down to the fact that he was relatively young when he committed the crime, that there has been the passage of so many years. He is now in his late 70s. There are those who are making the claim that, on humanitarian grounds, he should be paroled.

But others would respond by saying the scale of his crime was such. After all, you’re talking about premeditated murder of a very public individual that changed the course of American history. This is not just a crime. This is not just any crime. This is not just a serious crime. This is exactly the kind of crime for which life in prison is the only imaginable sentence, and life in prison must mean life in prison.

The death penalty was basically taken off the table by development to the Supreme Court and in California law. But the point is this: Sirhan Sirhan either will or will not be paroled. The entire parole board has to make some decision and then it will fall to California’s governor to make a decision, an eventual decision, within 120 days of that act.

It’s also interesting to note that of the nine surviving children of the late Senator Robert F. Kennedy and his wife Ethel, two of them, two sons, have taken the cause of Sirhan Sirhan and called for his parole. But at the very same time, six of the nine Kennedy children released a statement on behalf of the family condemning the very idea that their father’s assassin should ever be paroled ever.

The six Kennedy siblings wrote, “We are devastated that the man who murdered our father has been recommended for parole. We adamantly oppose the parole and release of Sirhan Sirhan and are shocked by a ruling that we believe ignores the standards of parole of a confessed first-degree murderer in the state of California.” “We are in disbelief that this man would be recommended for release.”

There’s another issue we will be tracking in this story, and that is the role, or the non-role, of the Los Angeles County District Attorney George Gascon. He is representative of a leftist new breed of prosecutors that basically doesn’t want to prosecute crimes and criminals in many cases, but instead to push the society to the left by the selective prosecution of crimes.

What’s interesting is that the Los Angeles County District Attorney did not provide anyone to show up at the parole hearing to argue against parole. That was a breach of the practice of that office going back for decades. Now the very idea of parole in criminal law, just thinking about the morality of crime and punishment, the whole idea of parole comes down to the idea that certain prisoners convicted of certain crimes under certain circumstances might be released, that is paroled, to go, at some point, back into society.

But as we shall see, parole has now become one of the political issues of social change in the United States, and there is no case that makes that point more graphically than the proposed parole of Sirhan Sirhan for the assassination of Senator Robert F. Kennedy.

This story is unfolding. It is not over, but it does put on the table some of the biggest questions about crime and punishment. Thus, at the very intersection of the Christian worldview and our headlines, we’ll be watching it together.