• November 28, 2021

Supreme Court rules against CDC’s revised eviction moratorium – Reason.com

Earlier tonight, the Supreme Court issued a failure of 6-3 against the Biden administration’s revised version of the Centers for Disease Control’s moratorium on evictions. Although the ruling is technically procedural, not a final decision on the merits of the case, it nevertheless makes it clear that the majority of the magistrates believe that the new version of the moratorium is illegal. Furthermore, the Supreme Court’s reinstatement of the district court’s ruling against the moratorium may well have consequences at the national level, not limited to the specific parties in this case.

This outcome was predicted by many legal commentators, including myself, because the revised moratorium had virtually the same legal weaknesses as the original version first adopted by the Trump administration and then revised multiple times under Biden. Most of the magistrates had already signaled that they believed the original moratorium was illegal, in a procedural ruling issued in June (though at the time, however, they refused to lift the stay, preventing the district court’s ruling from going into effect. ). Even President Biden admitted that the revised moratorium was unlikely to survive judicial review, but decided to issue it anyway.

Here is the explanation from the Supreme Court majority as to why the moratorium is illegal:

The CDC relied on §361 (a) of the Public Health Service Act for authority to enact and extend the eviction moratorium. See 58 Stat. 703, as amended, 42 USC §264 (a). That provision establishes:

“The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to issue and enforce the regulations that in its opinion are necessary to prevent the introduction, transmission or spread of communicable diseases from foreign countries to States or possessions, or from one State or possession to any other State or possession. For the purpose of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or items that are so infected or contaminated that they are sources of dangerous infection for humans. , and other measures that in his opinion are necessary … “.

Not only do applicants have a substantial chance of success on the merits, it’s hard to imagine them losing out. The government maintains that the first sentence of §361 (a) gives CDC broad authority to take whatever action it deems necessary to control the situation. spread of COVID-19, including the issuance of the moratorium. But the second sentence informs the granting of authority by illustrating the types of measures that might be necessary: ​​inspection, fumigation, disinfection, sanitation, extermination of pests, and destruction of contaminated animals and items. These measures are directly related to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself. The CDC moratorium, on the other hand, relates to interstate infection much more indirectly: If evictions occur, some subset of tenants could move from one state to another, and some subset of that group could do so while infected. with COVID-19 … This The downward connection between eviction and the interstate spread of disease is markedly different from the direct targeting of disease that characterizes the measures identified in the statute. When reading both sentences together, rather than the first in isolation, it is an exaggeration to argue that §361 (a) gives CDC the authority to impose this moratorium on eviction.

Even if the text were ambiguous, the mere extent of the authority claimed by the CDC under §361 (a) would advise against government interpretation. We expect Congress to speak clearly when authorizing an agency to exercise powers of “great ‘economic and political importance.’ Service air regulator group v. EPA, 573 US 302, 324 (2014) (citing FDA v. Brown & Williamson Tobacco Corp., 529 US 120, 160 (2000)). That’s exactly the kind of power the CDC is claiming here. At least 80% of the country, including between 6 and 17 million tenants at risk of eviction, is within the moratorium…. “Our precedents require Congress to enact extremely clear language if it wishes to significantly alter the balance between federal and state power and the government’s power over private property.” United States Forest Service v. Cowpasture River Preservation Assn., 590 USA ___, ___ – ___ (2020) …

In fact, the Government’s reading of §361 (a) would give the CDC an impressive amount of authority. It is difficult to see what measures this interpretation would place outside the scope of the CDC, and the Government has not identified any limits in §361 (a) beyond the requirement that the CDC consider a “necessary …” measure.

This expansive authority claim under §361 (a) is unprecedented. Since the enactment of that provision in 1944, no regulation based on it has even begun to approach the size or scope of the eviction moratorium. And it is further amplified with the CDC’s decision to impose criminal penalties of up to $ 250,000 in fine and a year in jail for those who violate the moratorium…. Section 361 (a) is a wafer-thin reed on which to rest such sweeping power.

How multiple lower court rulings have happened he pointed, such a wide delegation of power to the executive branch would likely be unconstitutional, which is all the more reason to interpret the statute in a way that avoids that problem, if possible.

In his dissent on behalf of the three liberal justices, Justice Stephen Breyer disagrees with the majority’s interpretation of Section 361. But, significantly, he has no real answer to the point that the interpretation advocated by the government would give the CDC virtually unlimited power. .

Breyer also argues that the majority acted too hastily in reinstating the district court order, because lower courts were divided on the legality of the original eviction moratorium (suggesting the issue is moot). True, there was disagreement in the lower courts, including a seriously flawed DC Circuit opinion supporting the moratorium in the case currently in the Supreme Court. But a vast majority of lower court rulings on the issue (six out of nine) were against the moratorium. And that doesn’t count a recent Eleventh Circuit decision, in which a 2-1 majority refused (for procedural reasons) to issue a preliminary injunction blocking the moratorium, but all three justices strongly suggested that they believe the order from the CDC is illegal.

Furthermore, as most noted, the legality of the CDC’s moratorium on eviction has been widely disputed in lower courts and reported twice before the Supreme Court itself. By now, the issues at stake have already been widely aired.

Tonight’s ruling is not, technically, a final decision on the merits. All it does is grant the plaintiffs’ procedural motion to lift the stay against enforcement of the district court’s ruling against the CDC. But, in practice, it is a clear and unequivocal signal of the Supreme Court’s position.

Furthermore, for the reasons I explained in my analysis of the original district court decision, that decision can plausibly be interpreted as a nationwide decision overturning the CDC order, one that is not limited to the parts of this specific case. However, I am not an expert on this particular procedural question, and therefore I appreciate the correction by those with more knowledge.

Even if tonight’s decision doesn’t immediately end the moratorium, it does create a precedent that lower court judges will likely use to rule against the CDC in all other cases challenging the moratorium across the country. Therefore, in practical terms, the moratorium can no longer be effectively enforced against any owner who decides to challenge it in court.

Tonight’s ruling, like many of the previous decisions in the eviction moratorium litigation, divided justices along ideological lines from left to right. I regret that division.

Many of the members of the left are likely to be unhappy with the outcome. But, as I have emphasized many times before, going back to the initial enactment of the moratorium under Trump, progressives should ask whether they really want the executive branch to have such broad power to shut down virtually any human activity of any kind. nice. Even if you trust Biden to exercise that power responsibly, do you have the same confidence in the next Republican president?

People may differ on the political merits of the eviction moratorium (I am very skeptical of them myself). But both the left and the right have reason to be happy that the White House and the CDC are being denied what a lower court ruling against the moratorium correctly called “quasi-dictatorial power.”

NOTE: The plaintiffs in some of the lawsuits against the eviction moratorium (though not the one just ruled by the Supreme Court) are represented by the Pacific Legal Foundation, where my wife works. I myself have played a minor (unpaid) role in advising PLF in this litigation.

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