The federal eviction moratorium is back, at least in a modified and limited form, after the White House took friendly fire from progressives for its initial failure to extend it and then waiting until the last minute to ask Congress to act instead.
Now the Centers for Disease Control and Prevention has returned to the business of regulating landlords, even if President Biden doesn't seem confident this moonlighting will last long. "Constitutionally, the bulk of the constitutional scholarship says that it's not likely to pass constitutional muster," he told reporters.
This could wind up being a microcosm of Biden's presidency. First, he floats some traditional liberalism — payments to cash-strapped renters and other assistance from a previously passed COVID stimulus. It doesn't work very well, as states fail to get the money to the people and only 12 percent of the rental aid is disbursed in the waning days of the moratorium. The CDC's legal authority to do what it was doing was always legally shaky and Supreme Court Justice Brett Kavanaugh said so when casting the deciding vote to leave it in place temporarily with the understanding it was due to expire on its own.
Then Biden scours the legal text for some middle ground between doing what progressives want and what the Constitution requires. "On this particular issue, the president has not only kicked the tires; he has double, triple, quadruple checked," senior adviser Gene Sperling assured reporters. Finding no easy way out, Biden punted to a hopelessly divided Congress days away from leaving town at the last possible minute before the moratorium lapsed.
Only then, when all Biden's appeals to institutionalism — Congress! The Supreme Court! The experts! — fell on deaf liberal ears did the president relent and provide a watered-down version of what progressives wanted. That is, for however long the Supreme Court lets it stand.
A version of this dance has been done on voting rights and the filibuster, though progressives have yet to find their appetites satiated on either issue. It remains to be seen whether infrastructure follows a similar pattern.
Biden was elected president by telling Bernie Sanders supporters he was a committed, if cautious, progressive and jittery anti-Trump suburbanites he was a Beltway-savvy moderate who would put the budding socialists in their place. That is a difficult enough way to campaign. It is an even harder way to govern.