NCLA Challenges CDC's Eviction Moratorium

"The order would abrogate the right to access the courts, violate limits on the Supremacy Clause, implicate the nondelegation doctrine, and traduce anti-commandeering principles."


Last week, Ilya Somin and I blogged about the Trump Administration's new eviction moratorium. The New Civil Liberties Alliance has challenged the policy, and sought a temporary restraining order in the Northern District of Georgia. The Plaintiff is from Virginia, but the CDC is based in Atlanta.

From the introduction:

Mr. Brown upheld his end of the bargain. He provided a habitable home to his tenant and continues to pay for maintenance, utilities and other expenses. When Mr. Brown's tenant breached her agreement, he should have been able to follow the lawful process laid down by the Virginia General Assembly for retaking possession of his home.

Mr. Brown failed to anticipate, however that the U.S. Centers for Disease Control, a federal agency, would issue a sweeping unilateral order suspending state law under the flimsy premise that doing so was "necessary" to control the COVID- 19 pandemic. CDC's actions are not authorized by statute or regulation. But even if they were, they are unprecedented in our history and are an affront to core constitutional limits on federal power. If allowed, the order would abrogate the right to access the courts, violate limits on the Supremacy Clause, implicate the nondelegation doctrine, and traduce anti-commandeering principles. CDC's effort to seize control of state law on such an insupportable basis must be rejected.

This case presents a kitchen sink of constitutional claims. Count I alleges a violation of the APA. Count II alleges a violation of the right to access courts. Count III alleges a violation of the Supremacy Clause–the moratorium is not a law. Count IV raise a Contracts Clause claim. Count IV raises commandeering arguments with respect to the state courts. (The brief argues that the CDC cannot "Strip state courts of jurisdiction to process eviction cases"; I wrote about this issue here.) Count VI raises the non-delegation doctrine. Count VII argues that the order suspends state law (this argument is connected to the Suspension Clause).

It's got everything.

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  1. Is this outfit another right-wing separatist organization attempting to emulate the mainstream’s ACLU?

    1. If politics were as lopsided as you imagine, it would be a maple seed twirling around in circles and going nowhere but down.

    2. Kirkland, this is your ACLU:

      Yes, tell everyone at the college that Nick Sandmann will be attending the college and warning that he is “dangerous.”

      Care to explain how this is consistent with any principle that the ACLU once defended?!?

      1. Why is Dr. Ed lying again? That’s not anybody’s ACLU. It’s one idiot person, not the ACLU.

        1. Since when does posting a primary source constitute lying?

          More from a related primary source:
          “Recently, the ACLU has abandoned its famed neutrality and has not supported some on the right while supporting those on the left. Now, the ACLU’s Samuel Crankshaw in Kentucky has targeted Transylvania University for admitting Nick Sandmann, who was falsely accused of abusing a Native American activist in front of Lincoln Memorial. (Crankshaw identifies as an ACLU staffer on social media) Despite various media organizations correcting the story and some settling with Sandmann, some in the media have continued to attack him. Yet, it is far more alarming to see an ACLU official rallying people against a young man whose chief offense appears to be that he is publicly (and unapologetically) conservative and pro-life.”

          1. And if the ACLU doesn’t support Crankshaw, the ACLU can remove him from his leadership position. It hasn’t….


            1. No, they can’t, because he has no “leadership position,” you complete imbecile.


              1. Well, it can FIRE him then. If he’d done this to someone like David Hogg, he would have been.

                Or, Heaven forbid, the ACLU could draw on its long-forgotten principles and defend BOTH men. There once was a time when it would do what groups like FIRE do today and defend the right of free expression, regardless of if they agree with the expression or not.

                Even if Crankshaw is merely an ACLU employee, it is disturbing to see him, identifying as such, rallying people against a young man whose chief offense appears to be that he is publicly (and unapologetically) conservative and pro-life.

                1. Literally, Ed went from “They should fire him for expressing his personal opinion” to “They should stand on their principles and defend free expression” in the space of two sentences.

          2. Jonathan Turley isn’t a “primary source.” He’s a secondary source. The primary source is the actual person’s tweet. And he is not the ACLU. He’s a low level staffer at an ACLU affiliate in Kentucky.

            1. I believe I posted the tweet — I meant to.

    3. Kirkland, the aclu is as disinterested in civil liberties as you are. Another striking similarity, they spend a lot of time talking about how much they support civil liberties, and how their viewpoints & the holders thereof are superior.

      1. Hank,
        you mean “uninterested” not “disinterested.”

    4. So nothing about the legal issues or facts of the case. All you can do is carp about who’s saying them.

      Your ad hominem’s aren’t even entertaining.

      1. Care to favor us with your assessment of this complaint’s prospects, Rossami?

        1. It is ripe for a nationwide injunction.
          How is that, clinger?

          1. That would be priceless — the left getting one of those.

        2. Count I seems quite plausible as the basis for an injunction. And despite my skepticism of nationwide injunctions, until SCOTUS agrees that they are wrong, fairness would suggest that this case is at least as good as others that have been granted.

          Count IV strikes me as a throw-away – included just so the court can reject it and therefore be perceived as delivering a “mixed” decision. Count V seems plausible though less clear to me. I don’t have enough information to have an opinion on the others.

  2. A contracts clause claim? I’ll defer to people who know more than me, but I understood the contracts clause to apply only to the states, not the federal government.

    1. What about the “No Bill of Attainder or ex post facto Law shall be passed.” clause?

      Just wondering…

      1. What about it?

      2. As you yourself say, “IANALNDIWTBO.”

        Why are you wondering about two things not even remotely related to the discussion? How about the emoluments clauses? Or the interstate compacts clause?

        1. Having seen both gay marriage (Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003)) and now transexual rights created out of thin air by judicial tyrants using 50-year-old laws against sex discrimination, and the purported right to murder babies created out of the “penumbra” of the First Amendment, I’m wondering if the aforementioned clause could be used in an equally creative fashion.

          1. Goodridge did not rely on any law, 50-years-old or otherwise, against sex discrimination.

            1. <I<"Goodridge did not rely on any law, 50-years-old or otherwise, against sex discrimination."

              Fair enough, but by the same token, there are only 46 States…

              In 1976, Massachusetts voters amended Part 1, Article 1 of the Constitution of the Commonwealth to read:

              “All people are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.”

          2. If the courts were disposed to strike down eviction moratoria on Constitutional grounds, there is certainly enough amorphous language in the Constitution to allow them to do so. Constitutional law is fundamentally indeterminate and determined by politics and precedent, not by the language of the document. But the courts aren’t going to be striking down this moratorium. If you want to spin legal theories for some alternate universe in which courts apply Constitutional doctrines against the CDC order, go ahead. It’s no better or worse an amusement than wargaming the Battle of the Pelennor Fields, and it has just as much real world effect.

  3. What about the taking clause? I know that lower courts have been hesitant about applying it to cases like this but I figured they would at least mention it. Also, as another commenter mentioned, doesn’t the contract clause just apply to the states?

    Note: Not a lawyer, just curious!

    1. I too am a little surprised that the complaint doesn’t have a Taking Clause cause of action. Damages/remedy issues might be one reason.

      Back rent wasn’t/isn’t affected by the CDC’s order, so what’s the “taking”? It does not seem to me that Plaintiff could get any useful relief there.

      But, prospectively, every day Plaintiff is prevented from evicting Tenant could be a “taking”. I’d defer to 5th Amd experts on that part. If so, a 5th Amd claim could at least get the Fed Gov’t on the hook for all future rent.

      Multiply that by every residential lease in the country, and you’re talking real money.

      1. Back rent isn’t an issue but debt that you eventually have to write off would be. If someone doesn’t pay and continues to not pay, the odds of them paying when the moratorium expires and eviction proceedings begin are quite low. But I expect that courts would treat that as just a bit too speculative to count as a taking.

        1. There is no taking. The CDC order doesn’t deprive the landlord of any rights: the tenant still owes the money. It only deprives the landlord of one particular remedy, eviction. The landlord could still obtain a money judgement against the tenant. Of course, many tenants are judgment-proof.

  4. Excellent. I look forward to a sweeping court decision that bans this and all nonsense like this.

    Maybe we can even extend it to the states.

    1. States almost certainly have this power. Feds do not.

  5. What took them so long?

    And no, supporting this claim is not support for evicting people and putting families on the street. It is support for a different policy, say, vouchers for rent and mortgage payments in place of the $600 per month cash that was doled out. That way both the unemployed and the landlord/mortgage holder are helped.

    It just takes a little bit of intelligence and common sense here folks.

  6. If there’s one thing we can count on, it’s for the Trump administration to try to implement its policy preferences in the way least likely to actually come into effect.

  7. As a real estate lawyer in private practice, not a law professor ideologue, I would advise my landlord clients that this suit has zero chance of success. Are there any others in my position with a different view?

    1. Success can be measured in a number of ways. Notoriety. Fundraising. Establishing credibility with a target audience. Ranting. Gauging courts.

      1. Damaging the tenant’s credit rating???

    2. Actually, after reading the petition, I think the plaintiff’s have a decent chance of success, and indeed, the better of the argument: The statute doesn’t authorize this kind of relief, and if it did, it would be unconstitutional.

  8. a sweeping unilateral order suspending state law under the flimsy premise that doing so was “necessary” to control the COVID- 19 pandemic. …

    CDC’s effort to seize control of state law on such an insupportable basis must be rejected.

    It’s not clear what exactly Blackman is quoting here. It’s “from the introduction,” but the introduction to what?

    In any case it’s full of unsubstantiated opinion. The premise is “flimsy?” Isn’t that part of what’s in dispute? And why the scare quotes around “necessary?”

    “insupportable?” Again, begging the question.

    1. Those aren’t scare quotes, they indicate bullshit from the CDC. Insupportable: choose one, or more: federalism, sticking with solutions within their mission scope, or just consistency about whether or not you want the spray-tanned knucklehead to be the authoritarian you claim -though the CDC has 1 appointee and the rest, not trump supporters. Doubt me? Take a look through their annual charitable donations, they won’t be going to trump. This isn’t complicated, your apparent dislike for the author aside.

      1. Why do clingers disdain science to such extreme degree?

        It is the conflict of reason and dopey religious dogma (Genesis-style creationism, for example)?

        The resentment of those with “elite” credentials, education, and achievement?

        Just a general disaffectedness?

        1. AK,
          What in the world does this have to do with science?
          As if you would recognize sciences of a thousand physics texts were dumped on your head.

        2. Tell us, scientifically, how a human male can live their entire lives as a male then magically one day believe, truly, deep down in their heart of hearts, they are a female and *poof* transform into a real authentic female?

      2. I still say that Trump is playing three dimensional chess and is setting up the CDC.

    2. “from the introduction” refers to the first page of the brief linked in Blackman’s post.

      Perhaps you could follow links to the relevant documents instead of announcing you can’t be bothered to read.

      1. Er, the complaint. My bad.

  9. The complaint is indeed a “kitchen sink” of legal theories, but I doubt that will improve plaintiff’s chances of success. Plaintiff makes four separate arguments for the proposition that, if the CDC has no statutory authority to impose the eviction moratorium, the CDC should not be allowed to impose it. I would have thought that this would be rather obvious, and not require four separate legal arguments.

    Actually, it’s five legal arguments if “unconstitutional” is an essential part of the following argument: “CDC’s eviction-moratorium order impermissibly commandeers state courts and state officers to apply, enforce, and implement an unconstitutional federal law.” And this argument appears to be wrong on the facts. The portions of the order quoted in the statement of facts section apply to, “a landlord, owner of a residential property, or other person with a legal right to pursue eviction or possessory action.” They don’t place any restrictions on state courts or officers.

    Finally, plaintiff also argues that the eviction moratorium violates the right of access to courts. So an otherwise illegal act becomes legal if you can find a way to involve the court system? I don’t think so. (The only case Plaintiff cites is Christopher v. Harbury, where the Court rejected the plaintiff’s right of access claim.)

    So most of the complaint is a legal side show. The outcome of the case will depend on whether or not the judge concludes that the CDC acted within the limits of its statutory authority.

  10. “It’s got everything.”

    They should have tossed in a 3rd Amd claim for good measure!

  11. As of this moment, the Docket Sheet on PACER does not indicate any action on the plaintiff’s request for a TRO; nor has the government filed a response yet.

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