The administration should be embarrassed by the arguments it’s making.
The administration should be embarrassed by the arguments it’s making.
L ast week, a group of realtors raced back into court to challenge President Biden’s extension of the eviction moratorium decree (formally issued by the CDC), which even his administration had conceded would be unconstitutional shortly before he was mau-maued into it by the Democrats’ Bolshevik wing.
Presiding over the Alabama Association of Realtors’ latest petition for immediate invalidation of the moratorium is Judge Dabney Friedrich of the federal district court in Washington, D.C. It was Judge Friedrich who invalidated the moratorium in May — i.e., the moratorium that expired on July 31, only to be revived by Biden last week. (My discussion of her last ruling is here.)
Judge Friedrich should swiftly invalidate the new eviction moratorium, this time without granting a stay that gives an administration whose bad faith is unabashed the opportunity to stall for time — and continue the moratorium — while it seeks review. The Justice Department’s latest defense of the moratorium — namely, the Supreme Court hasn’t really ruled against us — insults the intelligence.
As the Wall Street Journal’s editors have noted, the plaintiffs had a grand old time quoting Biden’s advisers back at him and the government lawyers. This was especially germane on the administration’s media-abetted attempt to airbrush history.
Hilariously, the Justice Department is seeking to distinguish the new-and-not-improved moratorium from the recently lapsed one by claiming that the new one is “targeted” at places where COVID transmission is substantial. On its face, this contention is risible: With about 87 percent covered, the “target” is substantially the whole country, as Judge Friedrich recognized in a hearing on Monday, pointing out to government lawyers that Biden’s decree is “effectively a nationwide moratorium.”
More importantly, in the White House’s fleeting moment of honesty, when Biden aide Gene Sperling admitted that an extension of the moratorium would be lawless (right before Biden ordered it), he explained that Biden had asked his advisers to consider a “targeted eviction moratorium.” After they “double-, triple-, quadruple-checked,” in Sperling’s telling, they were “unable to find the legal authority for even new, targeted eviction moratoriums.”
Charlie has succinctly diagnosed the flaw in the administration’s tap-dancing: “The problem here is categorical, not numerical.” The legal issue has nothing to do with the rate of COVID incidence in a given geographical region. Rather, Congress has not given the executive any authority to suspend evictions in response to a pandemic (assuming for argument’s sake that Congress itself has such authority under the commerce clause). “Targeting” is not relevant; the issue here is the usurpation by the president of Congress’s legislative authority. That’s blatantly unconstitutional, running roughshod over both separation-of-powers principles and the president’s duty to execute the laws faithfully.
As I observed last week, we should not assume that the Supreme Court will agree to hear the case if it is asked to do so. Biden strategically limited the extension to 60 days, so it will lapse in September while the justices are still on their summer recess (which ends in October).
When Rich and I discussed this on TMR on Friday, I cautioned that we should avoid projecting our outrage over Biden’s flagrant lawlessness onto the Court — and, in particular, onto Justice Brett Kavanaugh. In June, Justice Kavanaugh voted to allow the lawless moratorium to continue until its July 31 expiration date, with the express proviso that any extension would require congressional legislation. The administration’s bad faith makes his solicitude look foolish.
Remember, there were four justices, including Chief Justice John Roberts, who were apparently prepared to permit the moratorium to continue without qualification. Maybe Roberts, like Kavanaugh, reasoned that there was no real harm in letting it continue since it was lapsing in five weeks anyway. Maybe, because he frets about such things, Roberts calculated that it would be better to avoid a confrontation with the administration. On the other hand, it’s possible that Roberts was prepared, as I suspect the three progressive justices (Stephen Breyer, Sonia Sotomayor, and Elena Kagan) were prepared, to accept the CDC’s extravagant interpretation of its discretion under the governing statute and regulation. I suspect this is not the case, but I would not bet the farm on it in light of Roberts’s track record, and especially given all the “court reform” noise the Left is generating (which, speaking of “targeted,” is a transparent attempt to influence Roberts and Kavanaugh).
So, what is the Justice Department’s argument in support of the new moratorium? It is that the Supreme Court never ruled on the merits that the CDC lacked authority to issue the moratorium; ergo, the realtors and the rest of us chatterboxes who assume that the Court has provided clear guidance don’t know what we’re talking about.
This is a mendacious technical point that would offend me if I were a justice (but, of course, I’m not). It is true that there is no formal majority opinion on the main point of contention. The question did not come to the Court for a decision on the merits. The Court took the case as an application to vacate a stay — specifically, the stay that Judge Friedrich put on her order invalidating the moratorium. The stay kept the moratorium in place while the Justice Department exhausted its appeals to the higher courts.
The narrow question on which the Court ruled in Alabama Association of Realtors v. HHS, then, was whether to leave the stay in place, not whether the moratorium was lawful. On the narrow question, the justices ruled 5–4 in favor of the administration.
The Justice Department now insists to Judge Friedrich that that is the only ruling from the high court. Sure, the four conservative justices (Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett) were prepared to lift the stay, but they are actually the dissenters in the case. And regardless of how Justice Kavanaugh rationalized his vote, he voted with the majority in favor of the CDC.
Therefore, DOJ’s reasoning goes, there is no Supreme Court ruling against the moratorium for Judge Friedrich to follow. Beyond that, DOJ contends that there is precedent in the D.C. Circuit (which is binding on Friedrich’s D.C. district court) for the proposition that a lower court may not manufacture a Supreme Court ruling by cobbling together a dissent with some stray observations in a concurrence. Here, DOJ points out, there isn’t even a dissenting opinion; in denying the application to vacate the stay, the Court merely notes in passing that Thomas, Alito, Gorsuch, and Barrett “would grant the application.”
That is a specious analysis of the matter. Obviously so: If DOJ’s analysis were valid, the White House would not have publicly conceded that there was no legal authority for the moratorium. Biden would not be acknowledging that he is just buying time for the moratorium while expecting to lose in court.
If four justices “would grant the application” to vacate the stay, that necessarily means they are convinced the CDC would lose on the merits — i.e., that there is no legal authority for the moratorium. Similarly, assuming Judge Friedrich reaffirms her own reasoning that the moratorium is bereft of statutory authority (and there is no reason to assume otherwise), she would then have to weigh the inevitable Biden administration plea that she stay any invalidation of the moratorium (while DOJ tries to slow-walk appeals); to rule on that, she would be required to assess whether the administration is likely to lose on appeal. How, then, could Friedrich conceivably ignore that four justices were already persuaded that a stay should be denied because there is no legal authority for the moratorium?
On top of that, Kavanaugh not only explained that he was voting to deny the application to vacate because the moratorium was soon to lapse; he explicitly added, “In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.” Again, if Judge Friedrich is to rule on a Biden administration application for a stay, and must thus assess the administration’s likelihood of success, how could she blind herself to Justice Kavanaugh’s analysis?
In reality, then, the Supreme Court has made clear to Judge Friedrich that a majority of the justices agrees that there is no statutory authority supporting the moratorium at this point. In fact, the only lingering question is how large the majority is: It is entirely plausible that, last time around, Roberts, and perhaps others among the three progressives, were voting only to tolerate the stay for its few remaining weeks but otherwise believed statutory authority was lacking.
The last point I’d make is about the administration’s artifice of limiting the latest extension to 60 days, in the hope that the Court might decide to sidestep the controversy on mootness grounds. As I said to Rich on TMR, the game would be for Biden to wait a bit, then have the CDC decree another extension, and have DOJ argue that the realtors need to start the litigation all over again.
If abided, that kind of gamesmanship could go on forever. And, indeed, we’ve seen no shortage of it in recent months: New York deep-sixed a firearm-transportation regulation in order to evade a Second Amendment challenge, and later argued that the Court should refrain from ruling on Governor Cuomo’s COVID restrictions on religious gatherings because they had been withdrawn and rewritten.
There is, however, no good reason for the justices to tolerate such shenanigans. As the Court explained in the latter of these New York cases (Roman Catholic Archdiocese of Brooklyn v. Cuomo), a case is not deemed moot, and injunctive relief will remain available, if the applicants “remain under a constant threat” that the claimed illegality will be reinstated. Plainly, that is the realtors’ situation. The Court, moreover, has a long-established standing doctrine instructing that when a dispute is “capable of repetition, yet evading review,” the case should not be dismissed on mootness grounds.
Is it possible that the justices could try to avoid grappling with Biden’s lawless new moratorium? Yes, but they shouldn’t. If the question reaches them in the coming weeks, they should decide the merits.
I should add that there is a proper way to avoid a Supreme Court ruling. This time around, when she inevitably reaffirms her reasoning and holds that the Biden eviction moratorium is illegal, Judge Friedrich should not stay her order. It would then be up to the Biden administration to plead with the higher courts for a stay. Rather than invite the embarrassment of being slapped down in the D.C. Circuit and the Supreme Court, one hopes Biden would throw in the towel.
Alas, in light of the arguments the administration is currently making in the case, avoiding embarrassment does not seem to be a high priority.