BUCK: I want to start with a very basic question. Clay and I are gonna dive into this one together. Do you actually own your home? Do you? I don’t mean this in the sense of, “Well, do you rent?” or anything else. I mean, if you’re a homeowner, do you own it? Do you have property rights? Are there things that the government can’t just do to you when it comes to the sale of your property, using your property as you see fit?

Better ask those questions and start to look for the answers because right now, the CDC… That’s right. Apparently, the CDC is somewhere on your deed for the house that you own, that you rent out, or the house that you own that maybe you rent out the basement or you’ve got a guest cottage or whatever, or maybe it’s an investment property. CDC wants you to know that you don’t really own it because they think that 18 months of an eviction moratorium is not enough.

Now what’s fascinating here is before we even get to the “Is this a good policy?” and unsurprisingly I think, to all of you listening, I think it’s a terrible policy. But before we get into whether it’s a wise decision, I think we could start with is it a legal decision, a constitutional one, because this administration has straight up said — the Biden administration has told you — they do not have the constitutional authority to do this, but they’re gonna do it anyway!

BIDEN: I’ve sought out constitutional scholars to determine what is the best possibility that would come from executive action or the CDC’s judgment. What could they do that was most likely to pass muster constitutionally? The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster, number one. But there are several key scholars who think that it may and it’s worth the effort.

CLAY: I love this on so many different levels. Let me start here. Biden, to his credit… I rarely hear anybody say this. Very rarely does anybody in a position of authority say, “This is not constitutional, but we’re gonna do it anyway,” and I’m surprised that Biden walked through the experts that he’s actually, in theory, asked them what their opinion is of this potential decision, and they told him, “Hey, there’s no way it’s gonna be constitutional.”

There’s always fringe scholars who will say… That’s kind of the point of constitutional scholarship. They’ll argue, “Well, the majority opinion is this, but we believe the Constitution should be designed to read this way.” So this is a flagrantly unconstitutional action that he is undertaking. Having sworn to defend the Constitution, he now is going to undertake a decision that is flagrantly unconstitutional based on his own experts.

BUCK: I don’t even think it’s surprising. You saying that it’s rare. Clay, I don’t think it’s rare.

CLAY: It’s rare that they admit that what they’re doing is unconstitutional at the start.

BUCK: Barack Obama straight up said — and Biden was his vice president — at different times, “I don’t have the authority to,” because politically he was looking for cover.

CLAY: Yes.

BUCK: You’re right insofar as they’re usually not as blatant about it, but they do sometimes just say, “I don’t have the legal ability to do this” and then a month later they’re like, “Eh, it turns out I got a different view of it.” That was true on the immigration policies of the Obama administration, trying to get people papers to let them work in this country and to essentially nullify all immigration laws.

Remember the pen and it is phone? That was the whole “I’ve got a pen and a phone thing” with Obama was because there was not a willingness in the Congress to actually pass the laws Obama wanted. So he just said, “I’m just gonna write the executive orders and hope that the courts have my back.” This is how Democrats do it now. This is their approach. Biden’s just keeping it real.

CLAY: I love… So there are lots of times… This is me putting my lawyer hat on. There are lots of times you think you have a losing argument based on what the law is, and you still have an obligation to go out there and argue it. And this is why lawyers are sometimes more comfortable with arguments than regular people are, because we get paid to argue a side whether or not we agree with it.

What I love about my job now and have for the last decade or so is, I look at all the evidence and then I decide what I think the truth is and I don’t have to worry about having a client who chooses what side for me to argue. But I can’t remember — and maybe somebody out there can remember this occurring. But I can’t remember a time in my life when a president has ever said, “This is unconstitutional, according to the experts that I talked to and we’re gonna do it anyway.”

Now, I think they have been told many times, “Hey, if you try to do that it’s gonna get struck down by the courts and there’s somebody out there who will argue, ‘Hey, you can do this, and we have to wait years for the Supreme Court to actually make a resolution.'” But for Biden at the time that he’s announcing this policy to actually say as a part of the policy, now, “I’ve talked to a bunch of constitutional scholars and they tell me that we don’t have the authority to do this”? (chuckles) It’s just a level of honesty. It’s saying the quiet part out loud, effectively.

BUCK: This is because this Democrat Party operates in a post-constitutional world. They only cite the Constitution insofar as it gives them cover for later on the shredding of it. They don’t really believe that a document written by a bunch of old, dead white men with all kinds of problems in their past is something that should be binding upon them now.

They don’t buy into the fundamental political philosophy of it. They don’t believe in the separation of powers. They believe in the acquisition of power and the wielding of it, which is why they love this emergency declaration not only from the CDC about evictions, but everything about covid. This is how we’ve been able to see…

It’s like the Democrat Party is finally getting its wish of, “If we could just make people do things that we want them to do in as many ways as we can possibly get away with it one time, what would the country look like?” Welcome to the pandemic reality we’ve all been in. And just on the renters issue, Clay, Cori Bush did this whole thing for a few days where she was out on the steps of the Capitol —

CLAY: Five days, I think.

BUCK: — and she had open bags of potato chips and food. She was living on the steps of the Capitol. It was like this protest thing, and the left-wing progressive Democrats were all upset. Oh, they’re making all this noise about it. They act like it’s all fat cats, the landlords. This is real Marxist agitation stuff. Do you know that in New York City, 30%…? I just know numbers here ’cause I live here and 30% of people are small landlords.

CLAY: They own a couple of buildings or couple of apartments.

BUCK: Right. An apartment or two. For a lot of them, that’s their retirement.

CLAY: Yes.

BUCK: That’s how they’re paying bills when they’ve retired. They’re paying a mortgage and maybe they get $500 or $300 a month in free cash flow. I know of situations… I’m a real estate investor, and actually we had somebody who lost their job, whatever; they wanted to move. Yeah. There was a two-month penalty situation. I said, “No, we’re gonna wave the penalty the first time for everybody.”

CLAY: Yeah.

BUCK: You work with people. But I still have to pay the bank, right? So this is playing out with millions of people across the country, and there’s a Marxist basis behind so much of this.

CLAY: There was a big article about a guy in Versailles, Kentucky, for people who know Versailles, Kentucky. I think it was the Wall Street Journal. He owns an apartment complex there. He manages it himself. He fixes everything. He makes $75,000 a year. So what’s going to happen with the capital gains tax rate?

He was thinking, “I will sell this property, and it’s gonna fund my retirement,” because that’s what he’s been doing for years and years. And to your point, I think there’s this idea that everybody who owns a property is wildly wealthy and swimming in cash and very often it’s not true. Let me also mention this. (chuckles)

The number one thing that’s gonna be filed in the court briefings arguing about this eviction moratorium and whether it’s legal or not? Right at the present is gonna be Joe Biden saying it doesn’t pass muster constitutionally. So he’s actually undercut his own legal argument with his public pronouncements before he even undertakes the action himself. Which means, to me, this is Biden being led by the left-wing rabble-rousers in his party when he knows they have no basis in reality for him.

BUCK: It’s also why the way that they’ve stacked the judiciary in the Obama years… Now, Trump did a great job. Judges is where Trump gets to do back flips in the end zone, and I think there’s no question about it, Supreme Court all the way down to the circuit courts. But all you need are some Obama-appointee judges or even some Clinton-appointee judges, and they’ll deliver whatever the progressives want them, too.