The Supreme Court’s overturning of the CDC’s eviction moratorium was a great decision. But the mostconsequential outcome of that decision may very well be the Liberal minority’s dissenting opinion.
The Dispatch summarized the Liberal minority opinion in the SCOTUS Decision Against the CDC's Eviction Moratorium decision on 8/31/21:
The Supreme Court’s conservative majority last week blocked the Biden administration’s attempt to implement yet another eviction moratorium through the CDC. But in their dissent, Justices Breyer, Kagan, and Sotomayor signed onto an interpretation of the law that would have far-reaching effects within the administrative state. “In effect, [Breyer] and his two liberal colleagues claim that, unless Congress has expressly enumerated that which executive agencies are not allowed to do in a crisis, almost anything else could be considered within their purview,” Noah Rothman writes in Commentary. “Breyer’s logic would subordinate the text of the law and the country’s constitutional order to the urgency of the moment—and the moment is always urgent for someone. His is a prescription for adhocracy.”
In An Exercise in American Lawlessness, Rothman continues: "As National Review’s Charles C.W. Cooke observed, that is 'nothing less than an inversion of our written constitutional system' and a recipe for precisely the kind of executive tyranny James Madison feared."
The American system is based on the idea that a government’s only just powers are those necessary to protect individual rights, and that those powers be Constitutionally enumerated. In other words, the government acts only in limited fashion, and only with the consent of the governed. The Liberal SCOTUS wing inverts that fundamental premise. It makes clear that Congress is above the U.S. Constitution, in effect relegating the Constitution to the longtime goal of America’s Democratic Party reactionaries, the dustbin of irrelevance.
Unfortunately, the majority feeds into the Left’s designs. It made the right decision, but only on statutory, not Constitutional, grounds. It stated simply that Congress didn’t intend to grant federal agencies such broad authority, thus implying that it can if it wanted to.
That said, if the Left fully gets its way, we will have unlimited government ruling over rightless subjects. The Supreme Court is the most philosophical governmental entity in the United States of America today. It follows that the Liberal wing of the Supreme Court is the highest philosophical voice of the American Left. The SCOTUS minority’s inversion of a key American principle—that the government is an agent of, not ruler of, the American people—must be taken seriously as a roadmap for future Leftist (or “Progressive”) activism. Since the Left’s totalitarian designs on America are now codified into Supreme Court jurisprudence, we are another giant step closer to that dystopian future. This Minority dissent will be the standard if the Left ever gets a majority on the Supreme Court.
Related Reading:
On This Constitution Day, Remember the Declaration of Independence
The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty—Timothy Sandefur
The Permission Society: How the Ruling Class Turns Our Freedoms into Privileges and What We Can Do About It by Timothy Sandefur
Cornerstone of Liberty: Property Rights in 21st Century America by Timothy Sandefur and Christina Sandefur
Property Rights—Ayn Rand
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