The SCOTUS decision on the CDC's eviction-moratorium extension

 The two glaringly disturbing aspects of this are 

• the further breakdown of America's understanding of the clear Constitutional lines of demarcation between the three branches of the federal government
• the further breakdown of America's understanding of the centrality of property rights to the viability of human freedom.

Regarding the first, consider that

• Nancy Pelosi wouldn't bring it up for a vote in the House because she knew it would go down in defeat
• Joe Biden reversed himself on accepting the sunsetting of the most recent extension
• he explicitly stated that he knew it didn't fly from a constitutional standpoint

Here's an account of how that went down:

In September 2020, the Department of Health and Human Services and the CDC introduced what they insisted was only a temporary orderhalting evictions through the end of that year. The order expanded a congressional initiative protecting tenets from eviction but only those who received federal assistance or who resided in federally financed properties. The CDC’s logic was simple: Not only had the pandemic distorted the economy and put otherwise able providers at artificial financial risk, private residencies also “adhere to best practices” during a pandemic, “such as social distancing and other infection control measures.”

But as the pandemic wore on, Congress extended this temporary measure through January 31 of this year. Then, Joe Biden unilaterally extended it again via an executive order through the end of March, robbing this contingency measure of its support in law. In March, he extended it once again through June. All the while, legal challenges to this extraordinary alteration of the American social contract mounted, and the moratorium’s advocates increasingly found themselves on the wrong end of court judgments. But when the matter made its way before the Supreme Court, the judiciary elected not to strike the moratorium down on the spot. Instead, they allowed the moratorium to sunset on its own, deferring to the Biden administration’s contention that it would not be extended again.

But Joe Biden didn’t keep his word. On August 3, the CDC announced yet another extension of the federal eviction moratorium through the end of September. It represented a display of brazen contempt for the courtesy the Supreme Court had shown the executive branch, and Biden seemed to know it. Taking questions from reporters on August 4, the president was asked if this executive agency’s unilateral extension of a long-expired congressional contingency was “going to pass Supreme Court muster.” Biden replied in no uncertain terms: “The bulk of the constitutional scholarship says that it’s not likely to pass Constitutional muster,” he said. Knowing that he was skirting the bounds of constitutional propriety, he nevertheless noted that it may be “worth the effort” to test the Court—the incidental effect of which would be, at least, the temporary reimplementation of a lawless policy.

Read the sentence I've put in boldface a few times and let it sink in. Biden is saying, "What I want to see happen is more important than the Constitution."

The matter came back before the Supreme Court last week and, in a 6 to 3 vote, the Court said, "That's it. No more extending this thing."

 Justice Breyer's dissent ought to make the hair on anyone's neck stand up:

Breyer’s dissent is troubling in some of its reasoning. For example, he argues that since Congress did not specifically prohibit the CDC from exercising the power of preventing evictions, it is lawful. He wrote, “If Congress had meant to exclude these types of measures from its broad grant of authority, it likely would have said so.” Emphasis is mine. What Breyer wrote turns Article II, Section 2 of the Constitution on its head. The Constitution does not say Congress must tick off a list of what the executive branch cannot do. It says the executive does not have the authority to do A or B unless specifically given the authority to do it.

According to Breyer, if the CDC decided public transit was too much of a threat to public health and commuting by automobile prevents the spread of COVID, the CDC could decree that anyone who wanted to buy a car could do so with no credit check, no money down, 84-month terms, and 0% interest. I know my example is hyperbolic, and I did it purposely to illuminate Breyer’s apocryphal argument more clearly. The majority opinion raised the same point, asking, “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?”

Regarding the second point, the reaction from the Left perpetuates the longstanding notion on that side of the spectrum that landlords are grubby bastards who don't see their renters as human beings. As with any demonization of a category of people, indisputable examples of some cases of this being true can be easily found. We've all seen the evening-news stories about apartment complexes in unspeakable states of deterioration. But, as is also true of such demonization, it not only obscures the fact that most landlords are not like that, but also a basic economic fact about the renting arrangement:

A landlord by definition owns the property being rented.

Put in its most simple terms, the federal government has no business meddling in the coming to an agreement between the buyer and the seller of a good or service. This is so basic, it's dismaying in the extreme that this needs to be stated emphatically at this late date. 

So we've seen a small win, for the moment at least, for Constitutionality  and basic human freedom. 

Know, however, that those who have no use for either will not be resting. 

 

 

Barney and Clyde - Season two, episode nine

It's here! Episode 9, Season 2 of your favorite podcast that examines, fortnightly and forthrightly, four matters currently on the nation's plate, from a conservative perspective (Barney) and a libertarian viewpoint (Clyde). 

In this episode, our four segments are:

The Fine Line Between Caring and Grandstanding: We discuss the ginned-up outrage over the Dept of Education putting Title IX campus rape allegations on a due process footing... and that foot is now in the mouth of Joe Biden.

The State vs the Individual in a Time of Pandemic: Shelly Luther, owner of a Texas Salon gives law enforcement a lesson in civil disobedience. Does she qualify as a folk hero?

Maybe Someday We'll Try a Free Market: Authors of the PRIME Act seek to reduce regulations on meat production to secure the food supply.

My Kid's Noggin is NOT Government Property: Harvard University professors make some nasty and unfounded claims about homeschooling. 

Pour yourself something bracing and join us!

I suppose this jerk was within his rights, but there's a huge difference in his position and that of Christian small-business owners

It's not often I find the reasoning of a Red State piece problematic, but I must point up the shortcomings in this one by Jon Street.


At first glance, his position seems reasonable enough:

. . . if we’re being honest with ourselves, shouldn’t the same rule we apply for Christian business owners also be applied for gay business owners? Aren’t conservatives and libertarians, generally, in favor of everyone living equally under the law. So, what happened to this shared principle in this particular case? 

Could it be, perhaps, that gay business owners are not the right’s base, generally speaking, whereas, generally speaking, Christians tend to lean more conservative? It shouldn’t matter which political side a group of people take, broadly speaking. The concern we as Americans should have is ensuring that everyone is treated equally.

That’s not the reality if we are fighting for the rights of Christian business owners to refuse service while simultaneously fighting against the rights of gay business owners to do the same. Now, I acknowledge that the religious freedom element is present within the Christian business owner argument. I get that, and in no way am I advocating for those business owners to be forced to do anything that they feel goes against their faith. 

I’m simply saying that if we want to be perceived as consistent in our principles, forcing gay business owners to serve customers who handed out anti-LGBT brochures probably isn’t a hill worth dying on, politically. 

Just something to think about.

 But earlier in the piece, all he offers in the way of depicting what went down is this:

Earlier today, Red State reported that a gay coffee shop owner in Seattle forcible removed a group of pro-life customers who distributed anti-LGBT brochures. As I read the piece, I had a few thoughts I wanted to share.

Now, the other RS piece, linked in the above paragraph, goes into far more detail about what actually occurred.

But I think the account that really offers the clearest perspective comes from The Daily Caller:

According to the Liberator, the Christian group had been handing out pamphlets to Seattle locals on abortion, sin and the Bible. The group entered Bedlam Coffee to take a break and drink coffee when a barista went upstairs to tell the owner that the group was there.

Got that? They were taking a break from handing out their pamphlets. They were just sitting there having coffee. And the owner was up in his office, unaware of the group having come in until notified by an employee.

And then the owner lets loose with this:

The group tried to explain that they hadn’t placed any in the shop, but the owner repeatedly told them to”shut up.”

“There’s nothing you can say. This is you and I don’t want these people in this place,” the owner says. The group asks why he can’t tolerate their presence, prompting the owner to ask them if they would watch him have sex with his boyfriend.

“Can you tolerate my presence? Really? If I go get my boyfriend and f*ck him in the a** right here you’re going to tolerate that? Are you going to tolerate it?” the owner asked. “Answer my f***ing question! No, you’re going to sit right here and f***ing watch it! Leave all of you! Tell all your f*cking friends don’t come here!”

The group gets up to leave, as one woman among them says, “just know that Christ can save you from that lifestyle.”

“Yeah, I like a**. I’m not going to be saved by anything. I’d f*ck Christ in the a**. Okay? He’s hot,” he said.

The qualitative difference between this and cases involving Christian florists, bakers and photographers should be pretty clear. Those business people very simply and without fanfare declined a particular type of service, isolating it from the range of general services they'd be happy to provide. They also didn't hurl obscenities and insults at the gay couples that had approached them.

So far, the group handing out the pamphlets has not taken any legal action, which is a huge qualitative difference. Let's hope it doesn't. That would keep the lines of this clear. Just leave the shop and let that be that.

Now, for my take on all this:

I understand that the civil rights tensions of the 1960s were historically unique, and that the legal concept of public accommodation looked like it was necessary to bring into play to address the injustice of things like all-white lunch counters. But it opened the door to a lot of sticky questions.

I lean toward a pretty libertarian view - that is, that the free market takes care of these things. After all, who wants to either patronize a place perceived to be run by bigots, or, conversely, serve customers who are very upfront about views a business owner finds repellent?


But there's a level that a nice, tidy libertarian solution doesn't address. It's the human-interaction level, the cultural level.

Before the last few years, would any business owner in America have gone on the rant that the coffee shop proprietor did? Blaspheming the Lord and making patrons listen to a graphic scenario-setting about exotic sex acts?

This is what I mean by brittle. Everyone is now so concerned with what he or she may have the "right" to do that we have tossed the whole notion of respect, let alone kindness, out the window. The more fierce and vulgar one can be to those with opposing views, the more admirable.

And when the only begotten son of the one true God is involved, it adds to the applause from those who have willfully spurned Him.

It is so very late in the day.

Government doesn't grant you your rights

Steve McCann has long been one of my favorite American Thinker columnists. He came to the United States in 1951 as a child, orphaned in the carnage of World War II. He was blessed to have found his way to this country's founding documents and then the great works by the indispensable thinkers on the subject of human freedom.

His position is pretty much that which informs the decisions of what to post at this blog (as well as its name; yes, it's still very late in the day). America and the West generally are in decline and the chances to reverse that are dwindling.

In his piece published today, he reasserts a basic premise of his, that there are two impulses that drive human behavior:

The most dominant trait of mankind, as of all living creatures, is an innate desire to survive and prosper.  While many may willingly choose to pursue subsistence on their own terms, to the majority of the human race, the path of least resistance is the most desired.   Thus, mankind is susceptible to financial scams, gambling, crime, and resentment towards those who may have more.  But above all, far too many people are open to the concept of a central authority providing them with the means of survival.

A secondary characteristic of the human race, also shared by other species, is the need by some within the group to conquer or maintain control over their fellow man.   In the post-Industrial Revolution era, the easiest course to assume this power was to promise, in exchange for the votes of the people, that the state, through a new ruling class, would provide the citizenry cradle-to-grave security.  Thus, a Faustian bargain encompassing the desire by the majority for ease of survival and others for the need to rule through the vehicle of an authoritarian central government whose primary purpose would be control of virtually all economic, political and societal activity.

Regarding the second impulse, he takes the reader back through the centuries-old philosophical dichotomy regarding whether government ought to support individual autonomy, or impose an airtight collectivism and thereby put a lid on the individual's impulse to control others. He examines what Plato versus Aristotle had to say (Plato: collectivism, Aristotle: individual autonomy), and compares and contrasts the positions of Thomas Hobbes and John Locke, and a few other such pairings.

It's when he gets to the Progressives of the early 20th century that we see the collectivist view in its full obscenity:

The Progressives, beginning in the 1890’s, seized upon the concept of “fairness” and redefining “fundamental rights” as the basis of rejecting the Founders’ concept of a natural moral order.   Rather than accept the theory that the purpose of government is to protect man’s natural rights, the Progressives put forward the notion that government’s primary purpose is to ensure fairness and economic equality.   Therefore, fundamental rights, as prominent Progressive thinker Charles Merriam (1874-1953) wrote, “...are considered to have their source not in nature, but in law.”  John Dewey (1859-1952), often considered the father of American Progressivism, also wrote: “Natural rights and natural liberties exist only in the kingdom of mythological social zoology.”

Got that? According to these freedom-haters, it is through the benevolence of the State that you are granted the privilege of keeping what is yours.

This came up in the comment thread of the post here at LITD right below this one. A commenter excerpted from a Brookings Institution piece by Isabel Sawhill in which she claimed that a policy of cutting taxes for rich people was a failed notion, because, according to her, it has not led to an uptick in job creation.

That misses the point entirely.

There is no more pure form of property than money. Except in situations of barter, it is what each of us gets in exchange for our labor. The party on the other end of a given economic transaction gets the fruit of that labor, we get money which is ours to do as we wish with.

Do you see how Sawhill's view is rooted in the Progressive premise? If the State deems that you getting to keep what is yours is having a macroeconomic result it deems undesirable, it reserves the right to take some portion of it that it deems appropriate.

We won't ever begin to reverse the decline until this argument is framed properly. We need elected representatives, executive-branch policy administrators, think-tank scholars, teachers and citizens in all walks of life to understand what is at stake here.

It's a monumental task, but for some of us, sleeping well at night hinges on being relentless about it.