The Court is supposed to be the bulwark safeguarding the property rights of Americans from overbearing government action.
The Court is supposed to be the bulwark safeguarding the property rights of Americans from overbearing government action.
Y eah, the government illegally took their property, but it’s just for another four weeks.
That is the only way to read Justice Brett Kavanaugh’s maddening, though mercifully brief, opinion late yesterday, in which he joined the Supreme Court’s three reliable lefties (Breyer, Sotomayor, and Kagan) and Chief Justice Machiavelli (a.k.a Roberts) in upholding the eviction moratorium. In our editorial last week, National Review called for the moratorium to be ended — which is what four conservative justices (Thomas, Alito, Gorsuch, and Barrett) believe should be done.
Kavanaugh concedes that District Judge Dabney Friedrich was correct in ruling that the CDC lacked legal authority to seize from property owners their right to evict tenants who stopped paying their rent. Yet, he declined to disturb this lawless bullying because it is scheduled to lapse on July 31.
I wrote about Judge Friedrich’s ruling (and other aspects of the moratorium controversy) here, and our Brittany Bernstein covered it here. The district judge ably explained why the CDC’s risible theorizing about how evictions could trigger the spread of COVID-19 was not a valid basis for exercising its limited statutory power to prescribe safety measures to contain infectious disease. In addition, she noted that the executive agency had not only gone even further than Congress’s earlier dubious measure (which limited its reach to certain federally backed properties, whereas the CDC presumed to apply its moratorium indiscriminately, nationwide). The CDC also imposed criminal penalties (up to a year in jail and a hefty fine) for those who defied its edict.
Moreover, the lower court judge showed sensible restraint and deference, staying her invalidation of the moratorium to allow the government an opportunity to either withdraw it voluntarily or test Friedrich’s ruling in the higher courts. So now the higher courts have had their say: The moratorium violates the law . . . yet the Supreme Court will look the other way for a few more weeks.
Kavanaugh hand-wrings that more time will allow for “additional and more orderly distribution of congressionally appropriated rental funds.” Yet, the government has been well aware that it was on thin ice from the start (the moratorium, in various forms, goes back to March 2020); and when Judge Friedrich held it illegal nearly two months ago, she was far from the first judge to so rule.
The government’s claimed authority to regulate rental transactions is said to stem from the commerce clause. As another district judge, J. Campbell Barker, has reasoned, the moratorium is not a proper exercise of the power to regulate interstate commerce because the overwhelming majority of rental arrangements are intrastate commercial transactions. More to the point, the Constitution vests the federal government’s commerce power in Congress, not the CDC. The latter is an executive agency that has only whatever authority Congress has properly delegated to it by statute. Even assuming for argument’s sake the constitutional propriety of the statute in this context, the CDC may not go beyond what Congress has prescribed.
The CDC has gone too far, so why should the Supreme Court abide such lawlessness for one more moment? Quite apart from the fact that the government has had plenty of time to unwind this arrangement, it is not Kavanaugh’s job to facilitate “orderly” governance. The Court is supposed to be the bulwark safeguarding the property rights of Americans from overbearing government action.
And as long as Kavanaugh is of a mind, as he puts it, to “balance” the “equities,” should it not matter that the Justice Department, in its arrogant arguments to the federal courts, refused to acknowledge any limitation on the government’s power to nullify our rights? To hear DOJ tell it, bureaucrats merely need to mumble “commerce clause” and they can command whatever they subjectively believe is “fair.”
Come to think of it, that is the Biden administration’s version of “equity.” I wouldn’t have expected to find Kavanaugh signing on to it — not for four weeks, not for four seconds.