Well, we have our answer to the question of whether Justice Brett Kavanaugh would sit still for Joe Biden daring him to do his job. The CDC’s renewed, flagrantly unlawful eviction moratorium survived in the district court and in the D.C. Circuit because Kavanaugh had failed to join the other four justices who found the original moratorium to exceed the agency’s lawful authority. Kavanaugh agreed, but gave the Biden administration breathing room to unwind the old moratorium and get authorization from Congress before handing down a new one. Biden gave him the finger. This time, with the Court’s institutional credibility and the rule of law itself on the line, not only Kavanaugh but Chief Justice John Roberts joined a 6–3 ruling striking down the moratorium on the grounds that it “strains credulity” to believe that the CDC had the power to regulate apartment rentals nationwide:
Careful review of [the] record makes clear that the applicants are virtually certain to succeed on the merits of their argument that the CDC has exceeded its authority. It would be one thing if Congress had specifically authorized the action that the CDC has taken. But that has not happened. Instead, the CDC has imposed a nationwide moratorium on evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination. It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts . . .
The applicants not only have a substantial likelihood of success on the merits—it is difficult to imagine them losing . . . [The CDC’s statute lists] the kinds of measures [it authorizes] that could be necessary: inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles. These measures directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself. The CDC’s moratorium, on the other hand, relates to interstate infection far more indirectly: If evictions occur, some subset of tenants might move from one State to another, and some subset of that group might do so while infected with COVID–19. . . . This downstream 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. Reading both sentences together, rather than the first in isolation, it is a stretch to maintain that §361(a) gives the CDC the authority to impose this eviction moratorium. [Emphasis added.]
The Court’s unsigned per curiam opinion further noted that it would not presume that Congress delegated the vast powers claimed here without mentioning them even obliquely. The justices were visibly alarmed at the limitless powers that the Biden administration claims for the bureaucracy:
Even if the text were ambiguous, the sheer scope of the CDC’s claimed authority under §361(a) would counsel against the Government’s interpretation. . . . At least 80% of the country, including between 6 and 17 million tenants at risk of eviction, falls within the moratorium . . . the Government’s read of §361(a) would give the CDC a breathtaking amount of authority. It is hard to see what measures this interpretation would place outside the CDC’s reach, and the Government has identified no limit in §361(a) beyond the requirement that the CDC deem a measure “necessary.” . . . Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable? Require manufacturers to provide free computers to enable people to work from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work?
This claim of expansive authority under §361(a) is unprecedented. Since that provision’s enactment in 1944, no regulation premised on it has even begun to approach the size or scope of the eviction moratorium. And it is further amplified by the CDC’s decision to impose criminal penalties of up to a $250,000 fine and one year in jail on those who violate the moratorium. . . . Section 361(a) is a wafer-thin reed on which to rest such sweeping power. [Emphasis added.]
The United States of America does not have an elective democracy merely as window-dressing for a monarchy housed in the Centers for Disease Control and Prevention. Joe Biden erred badly by daring the Court to limit that monarchical assertion of power. His open disregard for the law seems to have offended not only Kavanaugh but Roberts as well. Given that this administration has more than three years left in its elected term, that is a bad place to start.