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Comment by iammisc | Hacker News Reader

https://www.bloomberg.com/opinion/articles/2021-08-04/biden-...

> The president knows this. He told the press that his administration had surveyed the opinions of constitutional scholars, and that most thought an extension would be unlawful. Yet under political pressure from the left, Biden nevertheless ultimately decided to issue the extension.

In other words: SCOTUS wrote words clearly indicating a ban would be illegal. By a technicality (expiration date), they didn't issue an explicit ruling. Biden did it anyway, while admitting he knew it was illegal.

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Is doing something that the Supreme Court may later overturn--and bear in mind it was a close decision--actually "illegal"?

I could certainly see the argument that it's ill-advised, and indeed, it was struck down a few weeks later. However, I don't think concurring opinions are binding and you could imagine certain fact patterns that might have changed Kavanaugh's mind: Congress agrees on a similar extension, but there's a short gap before it comes into effect, the situation worsens dramatically, the extension is much more narrowly tailored, etc.

> Is doing something that the Supreme Court may later overturn--and bear in mind it was a close decision--actually "illegal"?

It's not illegal at all. Making it illegal would never work in practice.

It is however supposed to be politically embarrassing and should in theory hurt your party.

However right now, in practice, due to the polarized two-party shit show that is US politics at the top level, it doesn't matter. The constituents haven proven to lack both will and tools to hold their elected representatives accountable, who in turn have learned they can get away with pretty much anything.

What could they have done to avoid a president who would behave that way? Elect Trump? Hah.

So in your own words the court did not issue a ruling, yet your original comment explicitly mentions a ruling without further elaboration. That seems disingenuous because without knowing what actually happened a reader could be easily mislead to believe that a ruling was actually issued, which is the only thing that matters with respect to the legal authority of the POTUS/SCOTUS.

I think that's a grey area. Some members indicated they might have ruled against the administration if the deadline didn't moot the issue. Which the Court did, when the issue was no longer moot.

If I were placing blame here, I'd put at least part of it on the SC for not giving a real ruling on it in the first place. There was speculation about an extension in the air already at the time, and they could have cut that short.

> SCOTUS wrote words clearly indicating a ban would be illegal. By a technicality (expiration date), they didn't issue an explicit ruling. Biden did it anyway, while admitting he knew it was illegal.

SCOTUS said the moratorium exceeded the CDC's legal authority, but declined to strike it down given it was soon expiring [1]. (They also strongly suggested that if POTUS tried renewing, they would strike it down.) POTUS tried renewing. SCOTUS struck it down.

None of this is properly construed as POTUS ignoring SCOTUS. When SCOTUS struck down the law, POTUS obliged.

[1] https://www.scotusblog.com/2021/06/divided-court-leaves-evic...

This is next level rationalizing. For a president to say in no clear terms that he is going to make a rule he knows is illegal is something else.

At least other administrations justify their attempts to break the law and mount some defense.

What are you talking about? The court ruled in favor of the administration in the first case, and against it in the second one. The administration complied after the second decision. This is how checks and balances work.

It's not an illegal rule until the Supreme Court actually makes a ruling. The Supreme Court does not determine Law merely by speaking.

notionally, the rule was (il)legal since its enactment. rulings merely affirm the legal status of rules, and give the Court the opportunity to order remedies.

for example, if the Court ruled that the Controlled Substances Act were unconstitutional, the government would be forced to free prisoners convicted of violating it, since the law was illegitimate the whole time. but if Congress repealed the act, they'd have no such obligation, since it was still a crime when the felony was committed.

No this is Kavanaugh trying to have his cake and eat it by saying one thing and doing another. He ducked out of making a ruling and Biden forced him to do so.

The court doesn’t get to make law by threatening to make law. They have to actually do it.

The court doesn't, or at least shouldn't, make law.

You're about 850 years too late on that front. Common Law has been a thing since Henry the Second and we just ggyG'd the whole UK legal system and edited from there.

You can't really avoid this either without throwing out judicial precedent because "knowing how the court will rule on subsequent cases" is basically the same as law.

> You can't really avoid this either without throwing out judicial precedent because "knowing how the court will rule on subsequent cases" is basically the same as law.

But that's not law. That's consistent interpretation of law. Very different.

You're confusing statutes and the law. They're not the same thing. Just like a regulation isn't a statute, but it is the law.

This kind of thing happens all the time though. The most salient instances being when states enact abortion restrictions that are known to be unconstitutional and were historically subject to injunctions and ruled against.

There isn't a mechanism to stop unconstitutional laws from being passed or left on the books.

SCOTUS also said the eviction ban needed to be an act of congress. Congress debated it since then and couldn't come up with something they agreed on, so nothing was passed. So then, on the 2nd go around, Biden is using the CDC to come up with it, again, bypassing the congress which SCOTUS said was the only legal path forward. Congress could grant the CDC the authority to do so, but it hasn't. I think bypassing SCOTUS can only be argued to be intentional on the 2nd round.

https://www.msn.com/en-us/news/politics/the-supreme-court-st...

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