The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.