Issues & Insights
U.S. Supreme Court. Photo: Joe Ravi, licensed under CC-BY-SA 3.0.

Cato, The Supreme Court, And Biden’s Sellout of Property Rights

It is hard not to notice the Biden administration’s clear demonstration of its disregard for American’s property rights and the Constitution. All one needs to do is read the Fifth Amendment’s Takings Clause while considering Biden’s extension of the CDC eviction moratorium.

Why? The White House did so despite admitting that despite trying everything it could to “discover” any plausible sounding excuse that would meet Constitutional muster, they were unable to do so.

An important reason for Biden’s failed search for enough legal mumbo-jumbo to justify

the eviction moratorium was that the Supreme Court recently rejected their preferred story in advance. In June, four justices held that the moratorium was unconstitutional. The deciding vote, Justice Brett Kavanaugh, on the other hand, sided with the liberal justices not to overturn it. Importantly, his reason was not because the moratorium was constitutional, but because it would soon expire, and “those few weeks will allow for additional and more orderly distribution” of the funds Congress appropriated for pandemic rental assistance.

Crucial to the issue of the current moratorium extension, however, was Kavanaugh’s holding that despite his not voting to overturn the moratorium that would soon end anyway for practical, humanitarian reasons (and because the Biden administration had indicated to the Court that they did not intent to extend the moratorium past July 31 before the decision was rendered), “clear and specific congressional authorization would be necessary for the CDC to extend the moratorium past July 31.”

As Senator Pat Toomey, R-Pa., summarized it, “The eviction moratorium lacks both a legal basis and an economic justification.”

So Biden’s CDC extended the moratorium anyway. And the leading excuse was that even though it would almost certainly to be ruled unconstitutional, it “would take a while for the court to strike it down.”

In other words, they just ignored the Court and the Constitution it was trying to defend, because slow-turning judicial wheels will let them get away with it, illustrating the well-worn adage, “Justice delayed is justice denied,” while violating John Adams’ defense of America as “being a nation of laws and not of men.”

For icing, the Biden administration’s action were also diametrically opposed to Biden’s promise of “aggressive action” to “maintain the rule of law and to bring integrity back to our justice system.”

Now the story gets more interesting.

The Supreme Court just overturned part of New York’s eviction moratorium, 6-3, even though it was going to expire at the end of this month. That certainly sends a marker that just because some constitutional violation is scheduled to expire in the near future (which history teaches us does not guarantee that it will expire) will no longer provide a “get out of jail free” card to administrative over-reach.

As important as this issue is, I believe that focusing the discussion around whether the moratorium extension was constitutional, as currently interpreted, acts to tone down the crucial importance of the principle being violated — private property — and therefore the width of the abyss between that long-established principle of defensible government action and what was done.

There is an excellent place to turn to highlight what is being hidden however — “Cato’s Letters.” Three centuries ago, beginning November 5, 1720, those letters appeared in the London Journal. Cato — the pseudonym for John Trenchard and Thomas Gordon — set out “to maintain and expose the glorious principles of liberty, and to expose the arts of those who would darken or destroy them.”

What makes Cato’s Letters so important is that, more than a half-century before our Declaration of Independence, they became, in Clinton Rossiter’s words, “the most popular, quotable, esteemed source of political ideas in the colonial period.”

Ronald Hamowy reinforced the importance of “Cato’s Letters” to the creation of America:

“From its first publication in the 1720s through the revolutionary era … Its arguments against oppressive government and in support of the splendors of freedom were quoted constantly and its authors were regarded as the country’s most eloquent opponents of despotism … [and] frequently served as the basis of the American response to the whole range of depradations under which the colonies suffered.”

In particular, Cato’s Letters’ defense of private property — the foundation of liberty — more strikingly reminds of how important property rights have been in America since long before the United States was created, and hence how essential defending them is, than does the political back and forth about constitutionality now taking place.

Consider just some of Trenchard and Gordon’s words on defending private property, to recognize what I mean:

The sole end of men’s entering into political societies was mutual protection and defense; and whatever power does not contribute to those purposes is not government, but usurpation.

The people…the security of their persons and property is their highest aim.

Preservation of [property] is the principal business of government.

If the people are suffered to keep their own, it is the most that they desire: But … they are frequently robbed by those whom they pay to protect them.

As the preservation of property is the source of national happiness, whoever violates property, or lessens or endangers it … is an enemy.

Every plowman knows a good government from a bad one…whether the fruits of his labor be his own, and whether he enjoy them in peace and security.

Nor could any man … have a right to violate the property of another … No man therefore could transfer to the magistrate that right which he had not himself.

The fruits of a man’s honest industry are the just rewards … as is his title to use them in the manner which he thinks fit … no man living can divest him but by usurpation, or by his own consent.

Every man is in nature and reason the judge and disposer of his own domestic affairs … Government being intended to protect men from the injuries of one another, and not to direct them in their own affairs.

Let people alone, and they will take care of themselves, and do it best … without the magistrate’s interposition and penalties.

The privileges of … doing what we please, and of growing rich as we can, without any other restriction, other than that by all this we hurt not the public, nor one another, are the glorious privileges of liberty; and its effects, to live in freedom, plenty, and safety.

The property of the poor will be as sacred as the privileges of the prince … Every man’s honest industry and useful talents, while they are employed for the public, will be employed for himself.

Where there is liberty … people labor for themselves, and no one can take from them the acquisitions which they make by their labor.

To live securely, happily, and independently, is the end and effect of liberty…property is the best support of that independency.

Chose whether you will be freemen or vassals; whether you will spend your own money and estates, or let others worse than you spend them for you.

Dominion will always desire increase, and property always to preserve itself … by this struggle liberty is preserved.

To prevent the unfair gains and depredations of one another…is indeed the business of the government; viz. to secure to every one his own.

The first care which wise governors will always take is … to secure to [citizens] the possession of their property, upon which everything else depends.

The Biden administration’s flippant attitude toward not just obeying the Constitution, but toward core founding principles that were key to creating our country, tells us whether the fruits of our labor are our own, and whether we enjoy them in peace and security.

Unfortunately the answer is no. And what is at stake is not merely an intellectual exercise or inter-party dispute, but as “Cato’s Letters” make clear, it is at the heart of what defines America.

Gary M. Galles is a professor of economics at Pepperdine University.

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  • As someone who became a landlord to enable me to care full-time for my terminally-ill wife for which I needed to ensure some form of income, I’m obviously deeply wounded by the Biden Presumption on the prolongation of the eviction moratoria.

    But I’m actually more concerned by Biden and his Administration perjuring themselves by swearing an oath to preserve, protect and defend the Constitution of the United States, particularly now that SCOTUS has judged premeditated eviction moratoria unconstitutional. And, other than bloviating, action to wipe this shame from our national scorecard, came there none, from anywhere. Now is the time for all with sufficient influence to correct this misconduct – come on, Barack Obama, Mr & Mrs Clinton, this may be a last time for you to resurrect your reputations.

    Why are the branches of government and their departments, particularly those that are supposedly non-political, like the police and other law enforcement agencies, still obeying a government that, this time, really is illegal? Do they not realize that they are being complicit in what might well be the treason Nancy Pelosi was looking for just a short year ago?

    • Biden, Obama, Sanders, AOC, et al. and the Democrat party, whether consciously or unconsciously, follow the same ideology as Lenin and the Bolsheviks. This ideology, commonly referred to as communism, became an established governing religion for the first time in 1917 Russia. Basically, everything is the property of the people, in the collective or communal sense. For instance, Lenin regarded his own life as being the property of the state. Likewise, all people’s lives were considered property of the state. It became a basic tenet of the communism. So, when Lenin was seriously ill, the USSR government met the demands of the top foreign doctors for huge sums of gold (payable in advance) to save Lenin’s life. Although the populace was starving at the time, Stalin and the others justified these huge gold payments to foreign doctors as being essential to the state because Lenin was one of the state’s most vital assets or property. Indeed, so vital a piece of property, that against the wishes of Lenin and his wife, Stalin had this vital state property (Lenin) embalmed for perpetual viewing in the Kremlin. Senator Sanders reportedly visited it on his last honeymoon.

      So, it is not only your physical property, but your life that the followers of Lenin believe is theirs to command (for the greater good of the people, of course). For all practical purposes, life and property, particularly property necessary for a livelihood, can be so intertwined as to be inseparable. Works the same way in communist-run cities such as Los Angeles and New York City, as it does at national level. I suspect Cato would have easily recognized it as oppressive. Mandates, lockdowns, etc. are all part of the same oppressive mentality practiced for the good of the people. Like in 1917 Russia, USA people have been asleep at the wheel or blindly welcoming to their own oppression.

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