> 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.
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.
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.
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 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...
At least other administrations justify their attempts to break the law and mount some defense.
There isn't a mechanism to stop unconstitutional laws from being passed or left on the books.
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.
The court doesn’t get to make law by threatening to make law. They have to actually do it.
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.
https://www.msn.com/en-us/news/politics/the-supreme-court-st...