PELOSI TO BIDEN: Get Better Lawyers.

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. . . .

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! . . .

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. . . .

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.

The more we learn about this story, the worse the Executive Branch’s defenses will fly. I still think it’s possible the Court enjoins the policy through an unsigned shadow docket entry with 1 or 2 dissents. Justice Kagan may think it better to join an unsigned, unexplained order, that avoids constraining federal power. Justice Sotomayor may dissent, without an opinion, to simply move onto the next controversy quietly.

If Trump were doing this the Faubus comparisons would be everywhere, not just in academic legal blogs.