“What the h*** is the presidency for!”
Newsletter 90: Lessons from the fight over the eviction moratorium
“Now I have the power and I mean to use it.”
— Lyndon Baines Johnson
Last week in the American Prospect, I argued that the Biden administration and congressional Democrats needed to lean into conflict with Republicans to make sure that people are “broadly aware that the administration is working to help them and that, were the opposing party in power, that wouldn’t be happening.” To illustrate the point, I focused on righteous fights where Biden has a high to virtually certain chance of success -- firing the head of the Social Security Commission or seizing pharmaceutical patents, for example. But the argument applies equally to fights where the administration is not certain of the outcome.
The extension of the eviction moratorium is just such a fight. Rather than rising to the occasion, the Biden administration’s legal team initially ducked it, allowing the moratorium to expire on Saturday.
Why? At the last minute, the administration announced that it did not have the power to extend the ban following a Supreme Court decision one month earlier. In that decision, the Court actually upheld the moratorium. But Justice Kavanaugh, who voted with the majority, issued a concurring opinion in which he argued that extensions of the moratorium beyond July 31st would require new legislation. The Biden administration claimed last week that that opinion essentially ties their hands. They are wrong. Kavanaugh’s ramblings here carry no legal weight, it’s just a strong signal that he would decide against an extension of the moratorium in a future case. And Biden’s team was apparently so scared of a loss that they decided they wouldn’t even try to win.
That cowardice is not only morally reprehensible, it's an objectively bad strategy. For one thing, it’s not actually a given that Kavanaugh will follow through to rule against the moratorium. Circumstances have changed a great deal in the month since his opinion. Case numbers are surging across the country in what could be the worst wave we’ve seen yet. Distribution of rental assistance, meanwhile, is still far from complete (Kavanaugh specifically cited this as one of his reasons for allowing the moratorium to stand through the month of July). These things may or may not make a difference in Kavanaugh’s thinking, but the administration will never find out if they don’t put the decision to him.
Even if the Supreme Court ultimately rejects a new moratorium, it will still have been better that the administration tried. It will take time for challenges to a new moratorium to work their way through the courts. Depending on the particular judges along the way, that could buy renters weeks or even months more in their homes. And making the Supreme Court fully own the evil of such a decision would further delegitimize a McConnell-packed Supreme Court that frankly needs to be understood by all to be indifferent to the sufferings of all but corporate elites and opponents of racial and gender equality.
Thankfully, not everyone was willing to accept this surrender. Heroic pressure from Cori Bush and other members of the Squad appears to have forced Biden’s lawyers to back down from their indefensible position. The administration announced yesterday that it would release a new eviction moratorium targeted to counties that are experiencing surges (nearly everywhere?). This approach still gives ground to Kavanaugh unnecessarily, but it is significantly better than the original path. Hopefully the administration will not repeat this mistake moving forward.
This episode should also carry a lesson for those who have sought to minimize complaints about Merrick Garland’s Justice Department. We, among others, have contended that Garland is too comfortable with Trump-era positions, reluctant to contend with the ongoing damage from the last administration, and slow deploying the Department’s power to advance the public interest. In response, many have claimed that Garland’s staid, unhurried, institutionalist approach is exactly what the country needs right now. But his Department’s risk aversion here (“What if Brett Kavanaugh says mean things about us??? We cannot risk a strident opinion, what might future corporate clients at a BigLaw firm TBD think?”) meant refusing to lift a finger as millions of people were kicked out of their homes during a public health emergency. And that is not an isolated case; the Justice Department’s actions often have life or death consequences.
Acting as if Brett Kavanaugh has such legitimacy as a Supreme Court Justice that his potential disdain for a US government position must be avoided at all costs is a feckless “institutionalism” that fetishizes the myth that Mitch McConnell’s Supreme Court has moral authority to go along with its power. Whether Garland’s brand of leadership and the conception of the Justice Department’s role that it represents ever served the public is debatable, but the evidence that it is not right for this moment is beginning to become overwhelming.
Speaking of things that aren’t right for this moment, my colleagues Fatou Ndiaye and Vishal Shankar have a new blog on Elizabeth Fowler, a former Johnson & Johnson shadow lobbyist who Biden tapped to be the Deputy Administrator of the Center for Medicare and Medicaid Services (CMS) and Director of the CMS Innovation Center. Nothing about Fowler’s record -- from her multiple revolutions between government and the healthcare industry to her consistent advocacy for industry-preferred positions while on the Hill -- inspires confidence. We should have been able to expect better of the Biden administration in filling this position, especially as the ongoing pandemic continues to make clear how broken our healthcare system is.
Elsewhere, it is the lack of nominees that is giving us the most cause for concern. A recent article from E&E highlights many advocates’ worries that the protracted vacancy at the head of the Office of Information and Regulatory Affairs (OIRA) is tilting the regulatory balance in industry’s favor at a critical moment. OIRA has long been a hub of anti-regulatory sentiment and a principle pressure point for industry to weaken or defeat new regulatory measures. Biden has indicated his desire to reorient the office away from these goals but, without a permanent leader, the overhaul necessary to achieve that transformation appears to be moving slowly or not at all.
Meanwhile, we still lack a nominee for key positions in the Justice Department, including the Office of Justice Programs (OJP). OJP has the power to affect major changes to the criminal justice system, it is unlikely to move as ambitiously as possible without more certainty about its permanent leadership. For The Forge last week, Mariama Eversley explained how "strategic use of the Office of Justice Programs, an obscure but potentially critical office within the Department of Justice, could begin to give public defenders, social service providers, and community leaders a say when it comes to federal funding for local criminal justice infrastructure." In a new blog, Nika Hajikhodaverdikhan introduced one specific proposal to leverage grant money from the Community Oriented Policing Services (COPS) program to require recipient departments to establish Community Oversight Boards (COB) to handle citizen complaints. Read more about the proposal here.
According to a new report from the New York Times, a lack of capacity within the federal government’s science agencies is already hampering climate action. This reporting underscores what we’ve been shouting for months: the Biden administration needs to treat the capacity crisis with a sense of urgency. It’s true that, in most places, truly transformative new hiring is on hold until Congress passes a budget this fall. But that is not the only or the principal obstacle that this administration faces in all cases. Many of the positions highlighted here are vacant thanks to recent departures, meaning that there should be sufficient funding to hire replacements. Nonetheless, the administration is struggling to fill these roles in a timely manner. Fixing this will likely require many different changes to recruitment, hiring, and retention policies -- some of which I explored in Talking Points Memo in June. Now that it has a confirmed Director, the Office of Personnel Management (OPM) should be moving as quickly as possible to make these changes so that agencies are working at partial capacity for as little time as possible. Achieving Biden’s agenda across virtually every issue area will depend on it.
Biden still has many nominations to make at independent agencies. But none will be more important than his choices for the Federal Reserve, particularly the Chair. With current Chair Jerome Powell’s term set to expire next February, the debate over his reappointment is heating up. Revolving Door Project continues to make the case that Biden can do better. For the blog last week, Max Moran profiled some of the other excellent candidates reportedly under consideration who would both defend loose monetary policy and deploy the Fed’s considerable tools to tackle financial speculation, racial inequality, monopolization, and climate change, among other issues. Max also authored a tremendous blog dismantling Matt Yglesias’ recent article “The Progressive Case Against Jerome Powell Is Weak” point-by-point. It’s both a fun and informative read; I highly encourage you to check it out.
Some have sought to brush aside many of our complaints against Powell by arguing that a progressive Vice Chair of Supervision could achieve everything progressives might hope for from the Fed while Powell remains Chair. In a new memo, we explain why this argument does not add up. Randal Quarles has hinted that he might serve past the end of his term as Vice Chair of Supervision which would mean that a Powell reappointment cements a Trump-appointed majority for years. (Note this might also mean that a Powell reappointment makes Quarles more likely to stay to defend his legacy.) Furthermore, assertions that Powell will immediately repudiate the deregulatory steps he has enthusiastically taken over the last three years because a Biden-appointed Vice Chair of Supervision tells him to have not been made plausible through sheer force of confident repetition. And, critically, if Powell remains Chair, he will be exceedingly well-positioned to quietly undermine any new regulatory action.
Want more? Check out some of the pieces that we have published or contributed research or thoughts to in the last week:
How DOJ Can Defund the Police | The Forge
How Biden and Garland's DOJ Can Increase Community Oversight of the Police
Biden Can't Make His Mark On The Fed Board So Long As Powell Is Chair
Good News for the IRS: The Economic Substance Doctrine Already Prevents Crypto Tax Avoidance
Key FCC Vacancy Threatens Net Neutrality's Return
Matt Yglesias' Case Against Powell Critics Is Weak
Biden's Executive Order Promises Relief For Farmers. Will It Deliver?
Who Would Be A Better Fed Chair Than Powell?
Perdue's Sweetheart Land Deal Demonstrates Need for Stronger Ethics Rules
Revolver Spotlight: Elizabeth Fowler
What the infrastructure bill will mean for tech