Better late than never, perhaps, but Justice Brett Kavanaugh has at least learned a valuable lesson, as has Chief Justice John Roberts. And that lesson is — don’t give Joe Biden the benefit of the doubt. In a ringing denunciation of the Biden administration’s defiance of Kavanaugh’s earlier warning, Roberts openly scoffed at the claim by the CDC and the White House that the agency had the legal authority to halt evictions, as well as impose criminal penalties for landlords that defied them. Not only did the landlords challenging this action have a good chance at prevailing at trial, Roberts wrote while ordering an injunction against the CDC, “it is difficult to imagine them losing”:
The case has been thoroughly briefed before us— twice. And careful review of that 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 CDC argued that their governing statute gives them wide authority in a pandemic, but Roberts derided the absurdity of the jurisdiction they claimed:
The Government contends that the first sentence of §361(a) gives the CDC broad authority to take whatever measures it deems necessary to control the spread of COVID–19, including issuing the moratorium. But the second sentence informs the grant of authority by illustrating the kinds of measures 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. See 86 Fed. Reg. 43248–43249. 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.
More to the point, the argument that the CDC makes has virtually no limiting principle. They are in essence arguing for complete authority over all commerce in times of public-health crises, a jurisdiction not even contemplated by Congress, let alone the statute:
Indeed, 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.” 42 U. S. C. §264(a); 42 CFR §70.2. 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. See 86 Fed. Reg. 43252; 42 CFR §70.18(a). Section 361(a) is a wafer-thin reed on which to rest such sweeping power.
And just as Kavanaugh pointed out in the June order, Roberts told the CDC and the Biden administration that they will have to ask Congress to vote for a moratorium:
It is up to Congress, not the CDC, to decide whether the public interest merits further action here. If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.
And there’s the rub for Biden, Nancy Pelosi, and Chuck Schumer. They want to pander to their progressive bases by protecting renters from evictions. At the same time, they don’t want to anger landlords who are losing their shirts by voting for yet another moratorium. They balked at doing just that at the end of last month as the previous moratorium expired, instead pressuring Biden and the CDC to defy the Supreme Court and issue another moratorium rather than take a tough vote one way or the other. In doing so, they had hoped to kick the can down the road another few months.
Instead, federal courts practically sprinted to get this issue back to the Supreme Court. Having been burned once by Biden, the justices — well, six of them, anyway — not only leaped at the chance to correct their first error but made sure to rebuke Biden and the CDC as bluntly as possible this time around. There won’t be any parsing out of this order and suggestions that slightly narrowed scope might skirt around it the next time.
Dan McLaughlin wonders whether the miscalculation by Biden will go deeper than just this one case:
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.
I had wondered the same thing on Wednesday, when the same 6-3 configuration forced the Biden administration to reimpose the Remain in Mexico policy. That decision was perfectly supportable on its own under the Administrative Procedure Act, so perhaps this will only be limited to the CDC and its overreach on eviction moratoria. But one does have to wonder whether this court will now be more inclined to be less incremental and less nuanced after watching Biden flat-out ignore them after going out of their way to give him a little breathing room. Let’s hope they learned that much of a lesson.