Government

Biden Eviction Moratorium Isn't Illegal No Matter How Many Law School Professors Whine About It

Kavanaugh's concurrence is not precedent and it's bad for the country to pretend it is.

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(Photo by Drew Angerer/Getty Images)

From some of the op-eds out there, the greatest threat to the continued functioning of the Republic is not, say, massive voter suppression efforts, a violent assault on lawmakers, or widespread warrantless surveillance, but rather the decision to extend a public health order for two months. Slopes can be slippery in this world, but it takes some galaxy brain thinking to tie this particular butterfly flutter to the collapse of constitutional order.

At issue is the CDC’s extension of the federal eviction moratorium to October 3, 2021. And, in fact, it’s not really an “extension” of the earlier moratorium because the policy is now limited only to counties “experiencing substantial and high levels of community transmission levels.” The crux of the measure is to keep people from becoming homeless in areas still very much in the middle of a public health crisis.

The earlier national moratorium narrowly survived Supreme Court scrutiny in a 5-4 opinion with Thomas, Alito, Gorsuch, and Barrett branding the public health measure as unconstitutional. Another four justices seemed to accept that the broad language of the underlying statute on its face. Brett Kavanaugh supplied the fifth vote in a short concurrence.

But this new limited extension has Jonathan Turley furious:

I have long been a critic of such unchecked and undefined authority in pandemics. This, however, is a particularly chilling example. It would give the CDC authority over huge swaths of our economy to avoid even the possibility of the “introduction” or spread of a disease. It means that a Constitution designed to prevent tyranny and authoritarianism becomes largely irrelevant if you put on a white lab coat. After all, the law was designed to control disease, not democracy, as a public health priority.

Well, “put on a white lab coat” and then experience an actual crisis event where half a million citizens have already died. And while Turley is obviously a shameless hack, he’s got his share of Federalist Society approved law professors echoing his nonsense in every op-ed page they can find. One shudders to think what these people would have done during World War II when Americans were ordered to ration supplies and participate in nightly blackouts to frustrate feared bombing runs. Public safety cannot justify government abuses — see Korematsu — but “don’t throw people out just because they’re two months behind on their rent” ain’t it, bub.

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Let’s put all the politics here aside: There is simply nothing illegal about Biden taking this action at this moment and to suggest otherwise is even more of an affront to constitutional order.

Here’s Turley’s key passage:

Yet the CDC’s original order was about to expire anyway, so — in a somewhat baffling concurrence — Justice Brett Kavanaugh supplied the fifth vote in favor of the CDC to allow the law to simply expire and thereby enable an “additional and more orderly distribution of the congressionally appropriated rental assistance.” Thus, Kavanaugh voted with the majority in this case — but also indicated that he agreed with his conservative colleagues on the larger point that the CDC never had the authority to issue the nationwide eviction moratorium in the first place without a congressional act.

Right… so Kavanuagh didn’t vote to strike down the moratorium, did he?

For all of Turley’s bloviating, dicta is not precedent. And for good reason! All we have right now on this question is a 5-4 shadow docket opinion with a concurring statement where Kavanaugh says “I agree with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium.”

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But Biden’s extension isn’t really a “nationwide” moratorium anymore. Could this more narrowly tailored action still satisfy Kavanaugh’s pragmatic concurrence? Possibly! We only know that he thought a blanket nationwide action exceeded the statute. A moratorium tied to individual counties meeting public health benchmarks might be all he needs to satisfy his interpretation of the statute. We just don’t know based on what he wrote whether he objected to the CDC issuing moratoria generally or to the specific features of that earlier moratorium.

Turley and his ilk advocate that the Biden administration stay its hand based on a hunch that the Supreme Court might rule against this moratorium. And, it seems, the Biden administration initially entertained taking this course, but that’s immaterial. The reality is that the Supreme Court has not ruled on this matter.

We don’t allow the federal courts to issue advisory opinions. The only thing in this case that we know is unconstitutional would be for the Supreme Court to presume to bind co-equal branches of government based on a statement of how it could rule in some future, non-ripe controversy.

The mischief that Turley’s interpretation of the world would create isn’t hard to imagine. Justice Alito already orchestrated a brutal kneecapping of public school teachers in Janus after slipping an invitation that he’d be willing to do so into the prior, unrelated Knox opinion. By Turley’s reckoning, public unions were already openly flouting the constitution when they continued operating in light of Alito’s foreshadowing. That’s not how any of this works.

That Kavanaugh provided a swing vote in a concurrence that nodded toward the dissent is not the same as articulating a working interpretation of the 1944 Public Health Service Act. Full stop. Given that, there’s nothing in the Constitution binding the administration from trying to craft a different policy under the same statute until the Supreme Court issues an opinion on the subject.

Because as they say in racing, “it’s one thing to catch somebody, it’s another thing to pass.” Kavanaugh may not think much of the CDC’s authority when he’s writing a paragraph-long concurrence, but could he really join an opinion with the other four that denied that authority completely? Would the other four be willing to join him in an opinion that struck down the specific moratorium but included enough caveats to satisfy his vague pragmatism concerns? Were the other four really even united or were they fractured based on how far whether the CDC is flatly unconstitutional or just the unique characteristics of the nationwide ban?

We don’t know any of that. And as long as the Supreme Court refuses to provide a real, fully fleshed out opinion on the matter it has zero authority to force Biden to read its tea leaves.

Canceling the Constitution: Biden hailed for violating rule of law to extend eviction moratorium [The Hill]

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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