August 30, 2021

Eviction Moratorium

“The Supreme Court on Thursday night blocked the Biden administration from enforcing the latest federal moratorium on evictions.” SCOTUSblog

Here’s our recent coverage of the eviction moratorium. The Flip Side

See past issues

From the Right

The right supports the decision, arguing that the moratorium was beyond the CDC’s authority.

“Back in June, Justice Kavanaugh decided that ‘clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.’ In response, President Biden announced that he intended to do it anyway — not because he believed that Kavanaugh was wrong, but because he hoped that doing so would accord him the ‘ability to, if we have to appeal, to keep this going for a month at least. I hope longer.’…

“[He was] publicly admitting that he was gaming the system to buy time. There is not a court in the world that would have taken that sitting down…

“Writing for the dissenters, Justice Breyer suggested that ‘if Congress had meant to exclude these types of measures from its broad grant of authority, it likely would have said so.’ This, of course, is not how the law works in the United States. Absent those explicitly enumerated in Article II of the Constitution, the executive branch has no power until it is given it by Congress; at all levels of government, we use statutes to list what governments may do, rather than itemize what they may not. There is simply no limiting principle in Breyer’s approach.”
The Editors, National Review

“It’s not just the Supreme Court that thinks the CDC doesn’t have the authority to write laws. Biden and members of his administration said as much. On August 2, as prominent Democrats were pushing for the administration to do what Congress wasn’t doing, Biden’s senior COVID-19 adviser, Gene Sperling, told reporters the Supreme Court declared the CDC could not grant an extension ‘without clear and specific congressional authorization.’ That was the day before [CDC Director Rochelle] Walensky signed the moratorium order…

“And on the day the moratorium order was signed, Biden admitted, ‘The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster.’ Rather than press Congress to pass legislation, the Biden White House preferred to toss the hot potato to the Supreme Court.”
Debra J. Saunders, American Spectator

“Biden admitted that he ignored the advice of his own White House counsel and virtually all of legal experts consulted by the White House. At the urging of Speaker Nancy Pelosi, D-Calif., Biden then called Harvard professor Laurence Tribe, who reportedly told him that he could go ahead with a new order even though a majority of Supreme Court justices previously declared it unconstitutional. In following Tribe's advice, the Biden administration increased the number of justices rejecting the basis for the moratorium from five to six members…

“After running on returning the country to strict adherence to ‘the rule of law, our Constitution,’ Biden is honoring that pledge primarily in the breach.”
Jonathan Turley, Fox News

“Landlords ‘not only have a substantial likelihood of success on the merits—it is difficult to imagine them losing,’ the Court writes… The CDC power grab is so obvious that the decision should have been 9-0. But the three liberal Justices dissented in part on grounds that the Court should have required a full briefing and argument before lifting the stay. This would have made the Justices accomplices to Mr. Biden’s legal gamesmanship…

“Congress can pass a new eviction ban, but on Friday Speaker Nancy Pelosi made no such promise even as she denounced the Court for having ‘immorally ripped away that [eviction] relief in a ruling that is arbitrary and cruel.’ It’s so much easier to denounce judges than it is to hold a vote and take responsibility for it.”
Editorial Board, Wall Street Journal

From the Left

The left is generally critical of the decision, arguing that it places many people at risk of eviction.

“For authority, the [CDC] cited the Public Health Service Act, which allows the CDC ‘to make and enforce’ regulations that ‘are necessary to prevent’ the spread of ‘communicable diseases’ between states…

“Some commentators—and, now, the Supreme Court—argued that this law could not permit a nationwide halt on evictions. But Congress itself disagreed with this cramped reading: In late 2020, rather than pass a whole new moratorium, Congress explicitly extended the CDC’s own policy, evidently approving of the agency’s powers under the statute. Since then, the CDC has extended the ban several more times.”
Mark Joseph Stern, Slate

“Given the highly infectious nature of this coronavirus, especially the Delta variant ravaging the country right now — and given the fact that homelessness is a major risk factor for getting COVID, which would only get worse if millions of people were abruptly forced to move in with family or seek emergency shelter — temporarily stopping people from being evicted would fall into the broad remit the law gives the CDC to stop a disease from spreading through the country…

“This is exactly why judges in several lower courts left the ban in place, including one Trump appointee in Georgia, who wrote that ‘in the situation we have here — an unprecedented pandemic with widespread contagion — this court finds that the CDC’s response is reasonably calibrated to the seriousness of the disease it is combatting.’”
Branko Marcetic, Jacobin Magazine

“Americans behind on their rent payments — and landlords desperate to stay above water — were supposed to be rescued by now. Congress allocated $46.5 billion in emergency rental assistance for people impacted by the pandemic. Lawmakers approved $25 billion of that as far back as December. This money was supposed to make the eviction moratorium unnecessary, keeping renters in their homes and helping landlords survive the covid crisis, too. Yet the Treasury Department reported Wednesday that states still had distributed only $5.1 billion of that $25 billion by the end of July…

“The problem is not the Treasury Department; it is the states and localities that are supposed to be distributing the aid. Some states have had to set up distribution systems from scratch. Others have been overwhelmed with applicants. Technical glitches have plagued application websites. Tenants and landlords lacking Internet access have had a harder time applying…

“If local governments continue to fail, judges considering eviction cases should use whatever discretion they have to help people get the aid they are due and keep people off the street. Now that the Supreme Court has spoken, they may be the last line of defense for many desperate people.”
Editorial Board, Washington Post

“Application processes [for the Emergency Rental Assistance Program] vary nationwide but are consistently convoluted and complicated, as well as often skewed to benefit landlords. The burden should be on those who make money from owning property to recuperate lost rental income from government relief funds; instead, landlord associations have fought to be able to evict struggling tenants. At the very least, an extended moratorium allows some more time for relief money to be distributed before evictions begin en masse…

“For those in the struggle for housing as a human right, however, it has long been clear that short-term moratoria on evictions are a Band-aid on the bullet wound of a broader crisis.”
Natasha Lennard, The Intercept

A libertarian's take

“If the CDC's understanding of its powers were correct, it would have the authority to make any of its frequently contentious COVID-19 recommendations, including its advice on mask wearing by K–12 students and the general public, mandatory. Rather than focus on people who move because they are evicted, it could simply decree that no one is allowed to change residences. It could require every American to be vaccinated against COVID-19. It could unilaterally impose nationwide shutdowns of businesses and order every American to stay home except for ‘essential’ purposes. It could prescribe fines and jail sentences for people who defy those requirements, as it has with the eviction moratorium…

“The fact that nobody seems to have noticed that the CDC had such powers until last September (76 years after the Public Health Service Act was passed), coupled with the fact that Biden himself contradictorily takes the view that the executive branch does not have the authority to impose measures such as general mask and vaccination requirements, shows how implausible the CDC's interpretation of the statute is. Under the nondelegation doctrine, which says Congress cannot transfer its legislative powers to the executive branch, it is not even clear that Congress could give the CDC such sweeping authority if it wanted to do so.”
Jacob Sullum, Reason

On the bright side...

Venomous sea snakes that charge divers may just be looking for love.
Smithsonian Magazine