The Corrupted "Process"

A tactical decision to sidestep the people

The Centers for Disease Control controversial moratorium on residential evictions ended July 31, with Congress having failed to pass new legislation authorizing it. In response, President Biden—contravening his own insistence that he was powerless to act—simply told the CDC to impose a new moratorium, even though the Supreme Court has already indicated that it was illegal.  

According to news reports, Biden was frustrated that there was nothing he could do, and disappointed that his legal advisors were unable to come up with a solution. But at that point, Nancy Pelosi suggested that Biden call Harvard law professor Lawrence Tribe, and see what he thought. Tribe had a novel solution: reissue the order as a new moratorium, not an extension. That way, the courts would have to reconsider the entire issue from square one. Biden conceded that the solution was in fact dilatory and based on linguistic tomfoolery, noting “at a minimum, by the time it gets litigated, it will probably give some additional time while we’re getting that $45 billion out to people.”  

The fact that the administration bothered to put Lawrence Tribe’s name behind this vapid legalistic maneuver, as though his imprimatur put it beyond question, indicates that the Biden White House either has outsized and naïve faith in the incorruptible reputation of a noted partisan, or a very low opinion of the intelligence of the public. Tribe, you may recall, spent the last four years next to a pyre, sacrificing his considerable credibility by going whole hog on every fantastic supposition about Trump as a traitor, terrorist, murderer, and rapist. Only Tom Arnold was more committed to the idea that Trump a KGB agent/stooge run by Putin. 

Doing what you want to, establishing facts on the ground, and then letting courts and lawyers figure out the rest, is not a characteristic of a system of government run by precedent, checks and balances, and the sovereignty of the people. It is how dictators behave, and is increasingly typical of the progressive posture, if it hasn’t always been so. In New York City we see a similar dynamic at play regarding homeless shelters. New York has a unique rule, stemming from a 1981 consent decree, that provides a “right to shelter” for anyone who demands it. Under this right, some 50,000 people live in the city’s shelter system. Most of them are “families,” typically single mothers with their children, who live in apartment-style residences. But many homeless individuals live in congregate shelter, including dorm-style accommodations.  

When the pandemic hit there was great concern that congregate living would foster spread of the disease, so thousands of homeless people were moved into hotels, with the cost borne by the federal government. This experiment led to an uproar in many communities, which were suddenly beset by disorder, open drug use, and crime. Hotels, though they may isolate residents from one another, were a poor substitute for homeless shelters, which have curfews, offer some services, and do not permit drug use or alcohol on the premises. 

With the pandemic abating, the city began to move the homeless hotel residents back to congregate shelter. But advocates—including many elected officials—sued the mayor to stop the process, on the grounds that it is too dangerous to do so at a time of rising infection due to the Delta variant. Additionally, we are given to understand, homeless people have extraordinarily low rates of vaccination, so to expose them to congregate living would violate best public health practices. But the reason they are resistant to vaccination, it has emerged, is that they don’t want to be moved out of the hotels. 

Advocates shrug. Shelter is an inalienable right, they say, so it can’t be conditioned on vaccination. And refusal to vaccinate is effectively the same thing as a failure of city government to educate the public on vaccination. So there’s nothing to be done except extend the hotel program. 

The real goal of the advocates has always been to transform the right to shelter into a right to housing—to end the temporary and emergency nature of homeless shelters and provide as a matter of right permanent homes on demand. This is clearly their goal today. Using the pandemic as an excuse to expand the umbrella of the welfare state is taking place at the local and federal levels, under the correct assumption that it’s almost impossible to remove an entitlement once it is established. 

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Seth Barron (@SethBarronNYC) is managing editor of The American Mind.