The Supreme Court has Become a Council of Kings

In this month's edition of "let's kill the Constitution," we have the CDC's eviction moratorium as the next demonstration that no one in our government feels compelled to comply with the Constitution anymore.

In Alabama Association of Realtors v. Department of Health and Human Services, the Supreme Court upheld the CDC eviction moratorium and did so in a manner that vastly expanded the Court's power and authority.  The moratorium required that property owners allow others to squat on their property, without compensation, for over a year.  It was clearly a violation of constitutionally protected property rights.  It restricted what property-owners could and could not do with their own property, without compensation or due process. 

A minority comprising Justices Thomas, Alito, Gorsuch, and Barrett held that the CDC does not have the authority to impose an eviction moratorium — even during a time of the pandemic.  Justice Kavanaugh agreed with this minority but then voted with Justices Roberts, Breyer, Sotomayor, and Kagan to allow the moratorium to stand.

Justice Kavanaugh wrote the majority opinion.  His rationalization was that the CDC did not have the authority to impose the eviction moratorium, but that the Court would allow it to stand, given that it was going to expire in 30 days anyway.  He gave the Executive Branch permission to violate the Constitution for another month.

In effect, Justice Kavanaugh issued a waiver to the Constitution.  He explicitly stated that the CDC had been violating the law and said it could continue to do so for another month.  Who gave the Supreme Court the authority to waive the Constitution or any duly enacted laws?  There's no such permission in the Constitution.  Article III, which establishes the Judicial Branch, grants the Supreme Court the authority to interpret laws and the Constitution, not the authority to decide if it's okay to break them. 

This all raises the question: if it didn't come from Article III, where did the Court get the authority to grant waivers?  The justices gave it to themselves — just as they gave themselves permission to rewrite the Constitution 50-plus years ago.  The Court has treated us to an endless stream of creative interpretations that have found everything from a right to abortion to a right to same-sex "marriage" in the Constitution.  Why would it surprise us that they've now given themselves the power to grant waivers also?

This has always been the problem with the creative interpretation of the Constitution.  When justices are allowed to use penumbras and emanations to discover things in the Constitution that aren't actually written in it, anything becomes possible.  In 1965, when Justice William O. Douglas used penumbral reasoning in the court's Griswold v. Connecticut decision, he should have been impeached for doing so.  It was an open acknowledgment that the court was giving itself the power to find things in the Constitution that weren't actually written in it.  Unfortunately, the citizenry didn't see the long slide into absurdity that would result. 

After the justices gave themselves the power to rewrite the Constitution, why should we be surprised that they've now given themselves the power to waive it as well?  That was the next inevitable step on the continuum of "evolving" the Constitution.

But the Executive Branch was not to be outdone by the Judicial Branch.  Just after the Supreme Court issued a 30-day waiver to the law, President Asterisk announced that he was going to continue breaking the law for another 120 days.  He extended the eviction moratorium for another three months.  And why shouldn't he?  His administration is a co-equal branch of the government.  If the defenders of the Constitution can waive it, so can he.  Kavanaugh made compliance conditional.  Lunch Bucket Joe just extended the conditions — easy-peasy.  A few Republicans are demanding that Joe Biden be impeached for knowingly violating the Constitution.  We should really be having that discussion about Brett Kavanaugh for originating this massive overreach.

But what about the Legislative Branch?  It's a co-equal branch also.  Does anyone doubt that our leaders in Congress will enthusiastically violate the Constitution now that they know it's okay to do so under certain circumstances?  I'll bet San Fran Nan and Little Chucky Schumer would have happily waived the constitutional impeachment requirements during The Donald's impeachment if they'd known they could.  After all, we were in the middle of an insurrection.  Surely, we didn't really need two-thirds for conviction when we faced the greatest crisis since the civil war — or was it 9/11?  I forget.

If adherence to the Constitution is conditional, under what conditions can it be waived?  The Supremes have ruled that property rights can be waived during a pandemic.  Can freedom of speech be waived during racial strife?  Can our Second Amendment rights be waived during a declared health crisis of gun violence?  Can our rights of free assembly be waived during times of civil unrest?

Unfortunately, if the Constitution can mean anything our robed masters want it to mean, it in fact means nothing.  The court has ruled that under certain circumstances, it's okay to violate the Constitution — for a little while.  That "a little while" has just gone from 30 days to 120 days.  What's to stop "a little while" from becoming a year — or more?  Our mutual pact of civilized behavior has been breached.

Historically, all dictators have retained for themselves the power to change the law at their own discretion.  By granting themselves the power to change and apply the Constitution at their discretion, the Supreme Court justices have made themselves a council of kings.  George Washington famously declined the offer to be the first king of the United States.  It's too bad the Supreme Court justices lack similar wisdom, honor, and humility. 

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