Monday, December 6, 2021

HomeCODE RED: Justice Kavanaugh's Chickens Have Come Home To Roost

CODE RED: Justice Kavanaugh's Chickens Have Come Home To Roost


Brett Kavanaugh was afforded an enormous amount of support during his confirmation hearings. Many supported for a variety of reasons but many, like me, supported his elevation for his anticipated constitutional scholarship. As a lawyer I supported him because I thought he would have the good sense to follow the Constitution and rule based on existing law – and not rule based on his immediate “feelings.”

I was wrong.

In Alabama Assoc of Realtor v DHHS, Kavanaugh wrote a concurrence that frankly made no sense. He admitted that the DHHS didn’t have the authority to issue an eviction moratorium – and in the same breath offered no constitutional or statutory authority for denying the stay (which would have lifted the moratorium). Kavanaugh cited just one case, and that case was wholly off-point and didn’t buttress his refusal to grant relief.

He ended his one-page attempt at acting as King Solomon with a suggestion that Congress must pass legislation to make this clearly illegal act legal, but then amazingly said, in essence, “Meh, it’s just two more weeks.” The problem is that there is no “meh, this illegal thing is almost over” section in the Constitutional. If something was illegal to begin with, it’s still illegal.

Kavanaugh’s inability to do his job gave a green light to Biden’s CDC, which immediately issued a new illegal and more strident moratorium order, this time imposing massive criminal penalties.

Kavanaugh’s inability to act like a Justice, to simply do his job, is why the latest challenge to the clearly unlawful national moratorium still stands. The trial court said its hands were tied. The current, clearly illegal moratorium will work its way back to the Supreme Court, and Kavanaugh might offer another sterling opinion, like “meh, it’s just another two weeks,” thus allowing the CDC to, again, act unconstitutionally and without any statutory authority. They have free rein to act as judge, jury, and contract executioner.

Streiff’s last piece on Kavanaugh was spot on. The chickens have come home to roost. Justice Kavanaugh’s chambers are a giant chicken coop, and his birds are pooping all over the Constitution.




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