In an article for Newsweek, JWI Deputy Director Garrett Snedeker writes about the Biden administration's continuance of the eviction moratorium, in defiance of a Supreme Court ruling that ordered its expiration. In Alabama Association of Realtors v. Department of Health and Human Services, the Court ordered an end to the moratorium by the end of July. Biden's decision to defy the Supreme Court order gives a precedent, Snedeker argues, for future Republican administrations to downplay rulings from the Judiciary in order to realize substantive conservative agendas. The executive branch has its own interpretive prerogative, as President Lincoln understood. Biden's error is therefore not choosing to ignore the Court, but for picking a deeply partisan issue to do it. Snedeker suggests that Republicans should remember this the next time a Republican is in the Oval Office.

Some excerpts from the piece:

"A Biden administration that flagrantly defies an on-point ruling of the Supreme Court opens itself to the precedential invocation of that same principle when a future Republican administration seeks to downplay a ruling of the Court by sustaining its own understanding of constitutionality, as per its branch's independent interpretive prerogative."

"Constitutionality, then, is better understood as an ongoing conversation between the branches, with constitutional determination much more fluid and distilled based on the actions and reactions of all the branches based on factors such as institutional competency and willingness to act. What many Americans sense but may not be able to articulate is that we are living in a flawed experiment in self-government, where judicial opinions have the force of upending the rules by which we govern ourselves. A Biden administration that has chosen to re-establish this understanding of constitutionality—arguably one much more in keeping with how the Founders envisioned the branches' notion of ambition counteracting ambition—could perform a valuable long-term service toward restoring notions of republican self-rule."

"Conservatives need not employ great powers of imagination to envision a world where a Republican president bucks the Court and realizes substantive priorities rendered moot by that eminent tribunal. Recall not too long ago, in New York v. Department of Commerce, when the Court held that the Trump administration had improper motives for including a question about citizenship on the U.S. census. Or even more significantly, when the Court in Bostock v. Clayton County read into the Civil Rights Act of 1964 an understanding of "sex" utterly detached from the original public meaning of the Act's drafters. Compared with the eviction moratorium decision that featured direct language with determinative timetables, these Trump-era decisions should have invited greater executive deliberation on prudential applicability."

View the full article in Newsweek here.