Kavanaugh should’ve killed the CDC’s illegal eviction moratorium when it first came before SCOTUS a month ago. He can’t afford to make the same mistake twice.
Kavanaugh should’ve killed the CDC’s illegal eviction moratorium when it first came before SCOTUS a month ago. He can’t afford to make the same mistake twice.
J oe Biden is openly daring Brett Kavanaugh to do his job and throw out the new eviction moratorium issued by the Centers for Disease Control and Prevention. This is the sort of dumb client-from-hell mouth-spouting that often caused Donald Trump to lose cases in court. Biden, a lawyer and longtime Senate Judiciary Committee chairman, should know better. Kavanaugh ought to have ruled to block the moratorium when it first came before the Court, and he ought to call Biden’s bluff now.
The chief job of Supreme Court justices, is, in the words of Chief Justice John Marshall, “to say what the law is.” There are sometimes legal reasons not to do that: They may decide against reaching the core legal question in a case because they lack jurisdiction, or because nobody had standing to bring the case, for instance. As judges, this is not their only job; there are always questions of prudence and justice that go into deciding what cases to take and what remedies to order for violations of the law, which is one reason why values and judgment do matter in deciding who should sit on the Court. But at the same time, the most central virtue in a judge is the courage to say what the law is regardless of the political consequences. And that is what Kavanaugh needs to muster now.
The Unconstitutional Moratorium
The CDC’s national eviction moratorium is flagrantly unlawful, as Biden himself has publicly admitted. That is why Biden had to go shopping for lawyers to justify it after his own White House Counsel’s Office told him it was illegal.
The moratorium is unlawful for two main reasons. First, the federal government has no general authority over the rental of real estate. (It can regulate rentals in some specific cases — if they occur on federal land, for example, or if racially discriminatory rules enforced by a state violate the 14th Amendment). The president may have fairly broad emergency powers as commander-in-chief, but as Justice Robert Jackson wrote when Harry Truman tried to use those powers to seize control of the nation’s steel mills, “The Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants.”
Congress has no emergency powers at all; the theoretical legal basis for its authorizing something like an eviction moratorium is its constitutional power to regulate interstate commerce. The Court has sometimes stretched its reading of that power to absurd lengths, allowing Congress to regulate even the growing of wheat or marijuana on one’s own land for one’s own, private consumption. But wheat and marijuana are movable property that could travel in interstate commerce; apartments are not. Real estate is the very definition of immovable local commerce. Land is either in one state or another; it doesn’t move.
Second, even if Congress did have the power to authorize the regulation of apartment rentals and evictions, it did not delegate that authority to, of all people, the director of the CDC. The CDC is not the Centers for Rent Control. As Andy McCarthy explores at greater length, the statute in question authorizes the secretary of Health and Human Services — who has delegated this power to the CDC’s director — to fight the spread of infectious disease by regulations ordering “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary” (emphasis added). A court of law will ordinarily not read a list like this as justifying every measure imaginable on the basis of the “necessary” clause — it will at most only countenance those measures that are similar to the ones listed.
It plainly cannot be the case that the director of the CDC can claim unreviewable discretion to take any action he deems “necessary.” The Constitution did not make the head of the executive branch the commander in chief of the country; it would make no sense for a bureaucrat two levels down from the president to possess that authority. Under the “major-questions doctrine,” courts do not typically assume that significant powers can be silently delegated by Congress to federal agencies on topics of importance that are not even mentioned anywhere in those agencies’ enabling statutes. And rental and eviction from apartments are, unsurprisingly, nowhere mentioned in the CDC’s enabling statute.
In fact, the CDC moratorium declares as its justification the goal of preventing potentially infected people from infecting others by either having to move from one state to another or having to move into more crowded conditions within the same state. But 42 U.S.C. §264, the statute in question, deals specifically with the question of the movement of infected people and grants a specific power to HHS (and, by extension, the CDC) to deal with it:
Regulations prescribed under this section shall not provide for the apprehension, detention, or conditional release of individuals except for the purpose of preventing the introduction, transmission, or spread of such communicable diseases as may be specified from time to time in Executive orders of the President . . . [such] regulations . . . shall be applicable only to individuals coming into a State or possession from a foreign country or a possession…[limited to] any individual reasonably believed to be infected with a communicable disease in a qualifying stage and (A) to be moving or about to move from a State to another State; or (B) to be a probable source of infection to individuals who, while infected . . . will be moving from a State to another State. Such regulations may provide that if upon examination any such individual is found to be infected, he may be detained for such time and in such manner as may be reasonably necessary.
In other words, Congress authorized a specific remedy: detaining people who might spread a disease. Because that remedy is an infringement on liberty, Congress placed restrictions on its use. Because the power to order that remedy comes from the interstate-commerce clause, Congress further restricted its use to cases in which infected people would actually be crossing state lines or national borders. The eviction moratorium, which empowers the jailing of landlords who evict even uninfected people, has none of these safeguards or limitations. This is exactly why courts typically conclude that if Congress has reached a careful legislative compromise to address a problem, it has not implicitly, silently authorized a broader power that is not so constrained.
Kavanaugh Punts
The original version of the moratorium, handed down during the Trump administration, was found illegal in May of this year by a district judge. The judge, not wanting to dictate an immediate and disruptive nationwide policy change on her own, stayed implementation of her injunction pending appeal. A three-judge panel of the D.C. Circuit reversed her decision and upheld the moratorium on June 2, pointing in part to Congress’s having temporarily authorized it. (That authorization has since expired, and the fact that Congress felt the need to issue it in the first place further undermines the notion that the original statute allowed for the moratorium.)
The case then went to the Supreme Court, which ruled on June 29. Four justices (Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett) voted to vacate the stay and enter the injunction, putting a halt to the eviction moratorium. Kavanaugh wrote to explain that he agreed with them — meaning a majority of the Court concluded that the moratorium was illegal — but he refused to do anything about it:
I agree with the District Court . . . that the [CDC] exceeded its existing statutory authority by issuing a nationwide eviction moratorium. . . . Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application to vacate the District Court’s stay of its order. . . . In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.
Here is the difference between doing your job and dodging it: Kavanaugh could quite reasonably have concluded that the moratorium was illegal without lifting the stay immediately. If he was concerned about the disruptive effect of enjoining the moratorium on the next to last day of June, he could easily have joined the other four justices in ordering that the stay be lifted as of July 31. That would have given Congress a month to figure this problem out. Of course, it would still have left unanswered the underlying constitutional question of what Congress has the power to do, but at least there would have been a majority opinion of the Court on the books. Instead, Kavanaugh clearly assumed — and this was naïve on his part — that if Congress did nothing, the fact that a majority of the Court had made clear this was illegal would deter Biden from trying it again.
We all know how that worked out. Not only has Biden announced that he is going to ignore the legal judgment of a majority of the Court, his stated justification for doing so is that he can get away with it because it will take time for the issue to reach the Court again:
The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster. . . . But there are several key scholars who think that it may and it’s worth the effort. But the present — you could not — the Court has already ruled on the present eviction moratorium. . . . Whether [the new moratorium] will pass constitutional measure with this administration [sic], I can’t tell you. I don’t know. There are a few scholars who say it will and others who say it’s not likely to.
But, at a minimum, by the time it gets litigated, it will probably give some additional time while we’re getting that $45 billion out to people who are, in fact, behind in the rent and don’t have the money. [Emphasis added.]
Biden reiterated that sentiment today:
I can’t guarantee you the court won’t rule that we don’t have that authority but at least we’ll have the ability to, if we have to appeal, to keep this going for a month – at least. I hope longer.
There is, of course, no meaningful legal distinction between the new moratorium and the one that five justices said was illegal a month ago, and Biden knows that perfectly well. He just thinks that he can get away with breaking the law while the issue works its way up to the Court again. This will put a district judge in a bind if the case is brought in the D.C. Circuit: The circuit’s decision is technically still binding precedent, even though a majority of the current Supreme Court has said that it is legally wrong. Had Kavanaugh done his job at the time, a district judge anywhere in the country could immediately order a halt to the moratorium on the basis of a decision that was binding precedent already. Unfortunately, he didn’t.
That said, Biden is being very stupid here by saying all this out loud. A court deciding whether to issue an injunction has to consider equity and justice, not just law. But having the president of the United States openly admit that his actions are “not likely to pass constitutional muster” and he’s just hoping to avoid judicial review while the clock runs down? Any judge worthy of the robes will recognize that as a reason to enjoin the moratorium immediately.
Either way, this is likely to end up back in Kavanaugh’s lap sooner rather than later. Next time, he should not trust Joe Biden, and he shouldn’t shy away from saying what the law is.