Nondelegation

First Appellate Court Ruling on CDC Eviction Moratorium Goes Against the Government

A unanimous Sixth Circuit decision upheld a lower court ruling holding that the moratorium is illegal.

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Today was a big day for the Centers for Disease Control eviction moratorium! First, the CDC extended the moratorium until June 30 (I wrote about that development here). Then, the US Court of Appeals for the Sixth Circuit issued the first appellate court ruling in the litigation over the moratorium's legality. In Tiger Lilly, LLC v. Department of Housing and Urban Development, upheld a trial court decision holding that the moratorium is illegal. The Sixth Circuit's reasoning is similar to that of the trial court in this same case, and that of one of the two previous district court decisions against the moratorium. Here is the key part of the opinion:

To slow disease transmission, the HHS Secretary, and the CDC by extension, can impose specific restrictions on both property interests, see 42 U.S.C. § 264(a), and liberty interests, see id. § 264(d). As to the former, the Secretary "may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary." Id. § 264(a). The government asserts that a nationwide eviction moratorium is among the "other measures" for disease control that Congress envisioned when drafting the statute.

We disagree. This kind of catchall provision at the end of a list of specific items warrants application of the ejusdem generiscanon, which says that "where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words." Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 11415 (2001) (citation omitted). The residual phrase in § 264(a) is "controlled and defined by reference to the enumerated categories...before it," id. at 115, such that the "other measures" envisioned in the statute are measures like "inspection, fumigation, disinfection, sanitation, pest extermination" and so on, 42 U.S.C. § 264(a). Plainly, government intrusion on property to sanitize and dispose of infected matter is different in nature from a moratorium on evictions. See Terkel v. CDC, No. 6:20cv00564, 2021 WL 742877, at *6 (E.D. Tex. Feb. 25, 2021) (holding that the Halt Order exceeded the scope of the CDC's authority and observing that "eviction is fundamentally the vindication of the property owner's possessory interest"). The Halt Order thus falls outside the scope of the statute.

Like the two district court rulings, the Sixth Circuit emphasizes that the government's interpretation of the statute would raise serious constitutional problems, because it would violate constraints on Congress' ability to delegate power to the executive branch:

As the district court noted, the broad construction of § 264 the government proposes raises…. concerns about the delegation of legislative power to the executive branch. The government would have us construe the phrase "and other measures, as in his judgment may be necessary," 42 U.S.C. § 264, as a "broad grant of authority" to impose any number of regulatory actions, provided the Secretary believes those actions will help prevent the spread of disease, regardless of whether they are in any way tethered to the "specific intrusions on private property described in the second sentence" of § 264. "In the absence of a clear mandate in the Act, it is unreasonable to assume that Congress intended to give the Secretary the unprecedented power" of that kind. Indus. Union Dep't, AFLCIO v. API, 448 U.S. 607, 645 (1980) (plurality opinion). We will not make such an unreasonable assumption.

I have been beating the drum on this nondelegation issue since my very first commentary on the eviction moratorium, back when it was first issued by the Trump administration in September 2020. Many federal judges seem to have the same reservations.

The Sixth Circuit also concludes that the government's interpretation of the law violates the rule that courts should not interpret federal law to usurp traditional areas of state government authority, unless Congress has clearly indicated its intent to do so:

[E]ven if we were inclined to construe the phrase "other measures" as expansively as the government suggests, we cannot read the Public Health Service Act to grant the CDC the power to insert itself into the landlordtenant relationship without some clear, unequivocal textual evidence of Congress's intent to do so. Regulation of the landlordtenant relationship is historically the province of the states…. It is an "ordinary rule of statutory construction that if Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute." Will v. Mich. Dep't of State Police, 491 U.S. 58, 65 (1989) (quotation marks and citation omitted)… There is no "unmistakably clear" language in the Public Health Service Act indicating Congress's intent to invade the traditionally Stateoperated arena of landlordtenant relationship.

Technically, today's ruling is not a final decision on the merits of the case. All it does is reject the federal government's motion to stay the district court ruling until such time as the appeal process is completed. However, one of the criteria for granting a stay is the appellate court's assessment of the moving party's likelihood of prevailing on the merits. For reasons discussed above, the Sixth Circuit panel concluded that the government has little or no chance of prevailing, and that is the reason why it rejected the motion for a stay. Thus, today's ruling is almost certainly a preview of what the panel will conclude when it does decide on the merits (possibly sometime in the next few weeks).

Like the trial court, the Sixth Circuit decision assesses the legality of Biden's initial revival of the moratorium first issued by Trump. It does not consider today's additional extension of the moratorium or the additional justifications offered by the CDC in its extension order. It is possible that the Sixth Circuit will reach a different conclusion when it issues its final decision on the merits, and has a chance to consider the latest version of the order. But for reasons I explained in my post about the extension earlier today, I think it is unlikely that courts will view legal rationale for new extension as any stronger than the old. We may soon see whether I am right about that or not.

In sum, we now have four rulings against the eviction moratorium (including the first appellate court ruling), and two in its favor. I analyzed the the previous decisions here, here, and here.

It is, perhaps worth noting that all three of the judges on the Sixth Circuit panel are Republican appointees, as were all three lower court judges who ruled against the moratorium. Two  GOP appointees and one Democratic one ruled in favor of the government. Thus, it is still possible that we will ultimately see an ideological split over this issue, despite the fact that the eviction order was first adopted by the Trump administration. For reasons I outlined here and here, liberal Democrats have good reason to be skeptical of the legality of this order, as much as do conservative Republicans. But liberal judges may not see it that way.

Be that as it may, it is at least clear that the case against the moratorium has legs. Multiple federal courts have now ruled against it. And the judges who issued those decisions are not easily dismissed as incompetents or wacky extremists. One of the judges on today's Sixth Circuit panel is Amul Thapar, a George W. Bush nominee who is a major figure in conservative legal circles, and often considered a potential Supreme Court appointee. The fact that he thinks the moratorium is illegal doesn't automatically prove that it actually is. But it does show that the arguments against it cannot be easily dismissed.

NOTE: The plaintiffs in some of the lawsuits against the eviction moratorium are represented by the Pacific Legal Foundation, where my wife works. I myself have played a minor (unpaid) role in advising PLF on this litigation.

UPDATE: I have changed the phrase where I said that the Sixth Circuit will "probably" issue a final decision in the next few weeks to "possibly." The latter better reflects the degree of uncertainty surrounding the timing.

UPDATE #2: In the original version of this post, I wrote that only one Republican appointee had voted to uphold the eviction ban. In reality, the figure is two (out of a total of nine GOP appointees who have ruled on the issue). I was misled by the fact that the case of Chambless Enterprises v. Redfield was heard jointly by District Judge Terry Doughty (a Trump appointee) and Magistrate Judge Karen Hayes (first appointed during the Clinton administration in 1997). I had thought that the opinion in the case was issued by the latter. But in actual fact it was Judge Doughty who signed it. I apologize for the mistake. But it only slightly alters the overall pattern of ideological division here.

NEXT: Classes #18: Free Exercise of Religion IV and Co-Ownership II

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  1. “Even if a movant demonstrates irreparable harm that decidedly outweighs any potential harm to the Plaintiffs if a stay is granted, it is still required to show, at a minimum, serious questions going to the merits.”

    Ouch!

    1. Absolutely!! That is about as good as it gets.

    2. “As the district court noted, the broad construction of § 264 the government proposes raises…. concerns about the delegation of legislative power to the executive branch.”

      It is self evident that all executive regulations are void, and that Congress may not delegate any. Congress needs to read and to enact the entire Federal Register is it wants regulations. It can then be held accountable at the next election. Make them read out loud each of the 10000 pages of inscrutable lawyer gibberish.

      1. To start, baby steps. Specifically, disallow monstrously gigantic steps of regulation intrusion into new, unforseen areas decades after the initial laws were created, like this, or taking over the entire Internet based on an ancient phone law.

        Taking the politics out of it is a bug, not a feature. If you like democracy. Which all these ultra regulators supposedly do. Until it gets in the way of the power.

  2. The entire lockdown and the entire Commie agenda is the biggest mistake inhuman history. Trump got rolled by the tech billionaire owners of the media and of the Dem party. Millions died of starvation. Trump lost. We were severely damaged by the Dem govs, more than if China dropped a nuclear bomb. They killed the nursung home residents by allowing asymptomatic infected young people to travel to provide intimate care to then. Trump should have fired the notorious Dem spy quack, Fauci. He should have arrested the Dem govs for Medicare fraud with their fraudulent death certificates.

    1. Not to mention that the Fed printed $5 trillion to hand to the Rothschilds and other banksters.

      1. Our billionaires added $1.7 trillion to their net worths. The Chinese one anothe $2 trillion. Meanwhile the world GDP shrank $4 trillion. That killed millions of poor people by starvation. The states killed 300000 mursing home patients, saving $120000 a year in Medicaid costs, each. Those lawyer elites did a good job for their employers.

        1. Jealous are you?

  3. This kind of catchall provision at the end of a list of specific items warrants application of the ejusdem generis canon, which says that “where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.”

    As a non-lawyer, I recognize that legal customs make sense to lawyers, but sometimes not to others. For me, this is one of those sometimes.

    I see the court begging the question it ought to have decided—which is, what basis for comparison applies to recognizing similarity in a case such as this one? As quoted above, the court does not discuss that.

    The court sees one basis, and seizes on it without explanation. It does not say why its reasoning makes its standard the only basis, or the best basis. All the means specifically listed are alike, says the court, except the eviction moratorium, which is clearly different.

    I ask, how alike? And how different? If the test were the one most closely related to evaluating a constitutional means—which is always ability to contribute to achieving a constitutionally legitimate objective—then the eviction moratorium belongs on the list. It is a means like the others, which are also means of accomplishing the objective in this instance—which is to combat and a suppress a pandemic.

    Considered as members of that category—a category the court seems not to have considered—they are all similar means. They all contribute legitimately to combatting the pandemic. It seems almost peculiar that a court would exclude combatting a pandemic as a category, while evaluating a means to combat a pandemic.

    I understand that lawyers who want this decision and not the other will say, “No, no, no. You don’t understand how the law works. The ejusdem generis canon is meant to work as a limitation.”

    In my legal naivety, from the outside, I have to tell you that if you assert that, you join with the court in begging the question. To avoid question begging, you have to say what is the standard of comparison, and then do the evaluation on that basis.

    I don’t think superficial similarity, unrelated to the objective sought by the law, gets over that bar.

    1. Stephen,
      As a former editor, you should know that ‘Question begging” means assuming the answer, not dodging the question.

      1. Don Nico, my problem is I am not a good enough writer. I thought I had made it clear that the court did assume the answer—one way to do that is to deliver an answer without reference to any basis of decision. Which I think I did mention. But I guess I never explicitly connected it to the court’s decision, so that was tacit—obvious, I thought, but I see I was mistaken.

      2. Don, the short form of “begetting the question” is no longer considered normal. The casual meaning of “the question begs to be asked” is dominant everywhere outside of pedantic English classes

        Avoiding the phrase “begging the question” altogether is considered good form for clarity’s sake.

        1. Sorry, Ben, but the correct use has no substitute. Need for it arises so often that giving it up would occasion too much avoidable work. On the other hand, noting the incorrect use (noting it privately and silently is good form), furnishes a handy tool for separating well-educated people from the others. That way you can (privately and silently) award full credit for a brilliant performance when—as often happens—you see one from someone you know to be doing it without special advantages.

          1. Steve, I prefer to use the form “circular reasoning”, which doesn’t have a secondary meaning.

    2. Are you suggesting some serious basis for saying that an eviction moratorium is an action similar to ordering “inspection, fumigation, disinfection, sanitation, pest extermination, [or] destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings”? Please outline the basis for similarity. I think the court devoted exactly as many words as necessary to the question: except for “inspection”, the examples are all ways to destroy sources of infections or contamination.

      1. Michael P, may I quote you? “. . . sources of dangerous infection to human beings.” That is what an eviction during a pandemic has in common with those other listed concerns.

        No doubt the list was chosen unwisely in the first place. Whoever compiled it apparently had bubonic plague—or something similar—in mind, instead of an airborne viral infection. Nevertheless, the forthright thing to do in court is to notice the similarity of both purpose and desired effect which ties the various measures together. Constitutional interpretation with regard to means ought to put legitimate purpose front and center, and make it the basis for means chosen. This court did not do that.

        1. Your reasoning proves too much, Stephen. It would give the CDC basically dictatorial control over everything, given how attenuated the connection between evictions and transmission of Covid would be.

        2. It’s pretty simple and I don’t understand why you don’t get this.

          Let’s say there’s a regulation for searching my bags at customs at the airport. And the regulation says the custom agent may seize “apples, oranges, pears, lemons, limes, strawberries, cherries, grapes, and other items”.

          They seize my laptop under that statute. They argue its an “other item”. Do you really not understand why I would have a plausible argument that “other items” refers to other kinds of fruit?

          1. If I understand correctly, Steve is objecting to the lack of specificity. In your example: obviously, that rule would apply to grapefruit. Would it apply to Tomatoes? Potatoes? Grain? Bread? Prepared sandwiches? Paraphernalia from Subway? Obviously the first applies and the last does not. However, the term “similar” doesn’t give much guidance on where to draw the line. That would have to be determined based on context clues and the stated purpose of the law.

            I see where he is coming from, but I don’t see how any guidance more detailed than “similar” can be made that isn’t obscenely convoluted or case-specific.

            1. If the debate is just about some gray area cases, I get it. But he seemed to actually being saying he doesn’t understand ejusdem generis as a principle. I think as a principle, it just states a principle of common sense about how to interpret lists of things.

            2. When in doubt, throw it back in Congress’ face and force the hiding cowards to go on record.

              1. That’s not how statutory interpretation works. Statutory interpretation isn’t about punishing or disciplining Congress; it’s about reasonably interpreting what Congress has done.

                1. And if what Congress has done is internally inconsistent and self contradictory to the point that there is no reasonable interpretation?

          2. Let’s say there’s a regulation for searching my bags at customs at the airport. And the regulation says the custom agent may seize “apples, oranges, pears, lemons, limes, strawberries, cherries, grapes, and other items”.

            They seize my laptop under that statute.

            It was a MacBook. Checkmate.

          3. It’s pretty simple and I don’t understand why you don’t get this.

            Remember that you’re talking to someone who recently argued that words used by a lawyer posting on a law blog about a legal matter should not be interpreted according to their legal meaning, but according to some unspecified context allegedly established after the fact by his (Lathrop’s) response to that post.

            Good luck.

        3. While I support eviction moratoriums as a matter of policy (and I’m probably one of the most liberal readers of this blog), I think the Court was right here on the CDC’s action. The problem with your example is that you are comparing the wrong things. You quote “… sources of dangerous infection to human beings” and then argue that this section grants the authority necessary to the director. The problem is that this is not the list of approved actions to use as a basis of comparison (notice there is no verb in this phrase). Rather, that phrase is a modifier of the list of approved actions, indicating the situations in which the director can order one of the approved actions (e.g., the director cannot order an inspection of my home just because he feels like it, rather he can only do so with evidence that my home is a source of infection dangerous to humans). The list of actions approved is “inspection, fumigation, disinfection, sanitation, pest extermination, [or] destruction….” None of these actions is even closely related to ordering a moratorium on evictions.

          Also, another canon of statutory interpretation is that no words are superfluous. If Congress had really intended to give CDC Director authority to issue any order whatsoever that s/he felt supported public health, it could easily have written just that. The fact that Congress chose to include specific examples of the types of orders it had in mind demonstrates it intended the grant of authority to not be limitless.

          Finally, and this is admittedly a minor point, but this case is a matter of statutory interpretation, not Constitutional interpretation. There are different canons for interpreting the Constitution versus a statute.

    3. Steve, I understand your thoughts, but I have to disagree. This is something that clearly must be considered on a case-by-case basis. The use of an “other” statement is needed to not have a rule that is overlong yet still misses small options.

      For example, incineration of contaminated possessions isn’t in the list, but would clearly be acceptable. On the other hand, in a zombie plague, the CDC wouldn’t be able to order the summary execution of all infected without an act of Congress. I think we can agree on these extremes.

      Saying that it must be “similar” is the best decision. Yes, the word “similar” should be in the text of the law, and yes it doesn’t give much guidance in some edge cases (like mandatory testing). However, we have to decide what would be considered similar on a case by case basis just due to the nature of infection management.

      1. The real issue isn’t summary execution of all infected. While extreme, that’s actually directly and strongly related to the topic of the grant of power.

        But the rationale here is that evicted people might move, and moving might spread the virus.

        When the virus is already everywhere, and nobody has suggested banning travel.

        IOW, the excuse for the regulation is a pretext, just handwaving to justify something they’d been told to order. It isn’t really an anti-pandemic measure.

        1. Dilan, for your example to address my objection, someone would have to consider the purpose for seizing the fruits—presumably some kind of safeguard against pests which might threaten agriculture—and then show that your laptop was a threat to agriculture, in the same way that fruit pests threaten agriculture. You seem not to have noticed a point I made clearly—that it is the identity of purpose among the enumerated items which establishes the similarity of the eviction moratorium, which was put in place for the same purpose as the others.

          1. Your analytic process is backwards. The purpose is derived from looking at the list.

            1. David is exactly right. The whole point is the list of fruits tells you something about what the author is talking about.

            2. No, David. Not if the purpose derived turns out to be one no sane person would have intended. The court said:

              The residual phrase in § 264(a) is “controlled and defined by reference to the enumerated categories…before it,” id. at 115, such that the “other measures” envisioned in the statute are measures like “inspection, fumigation, disinfection, sanitation, pest extermination” and so on, 42 U.S.C. § 264(a). Plainly, government intrusion on property to sanitize and dispose of infected matter is different in nature from a moratorium on evictions.

              Treat that as exhaustive, and it leaves no means to cope with deadly airborne pathogens. That is a list of means to use against plague, or ebola, not weaponized flu.

              Nobody prescribing powers against deadly diseases chooses on purpose to put an entire class of threats beyond reach. Policy discussions premised on COVID-19 sink toward complacence. Awful as the experience of this pandemic has been, COVID-19 falls short of a worst case scenario. Mere nature has regularly served up diseases far deadlier than COVID-19. Malign modification of nature now looms as a yet-worse possibility.

              I don’t want emergency powers used when they shouldn’t be. I don’t want them inadequate if they must be used. Small government ideology—and reflexive hostility to the notion of public health policy—would guarantee inadequate response amidst the worst crises our society encounters. That cannot be an unavoidable outcome of customary legal interpretation.

              1. No, Stephen. That’s just not how statutory interpretation works. (For someone constantly whining that non-historians can’t do history, you are remarkably cavalier about your ability to understand how lawyering is done.)

                There is of course nothing insane about giving the CDC the power to deal with plague or ebola.

                If in fact it “leaves no means to cope with deadly airborne pathogens,” then the CDC simply can’t cope with deadly airborne pathogens, at least not under that provision. “This is important so therefore this agency has the power to do something about it” is not how it works.

                This has nothing to do with “reflexive hostility to the notion of public health policy.” This has to do with the way statutory interpretation works.

                1. Nieporent, if, “the way statutory interpretation works,” turns into an otherwise avoidable existential crisis for the nation, I doubt you will find many people on your side of the question.

                  I see no reason to suppose you cherish reflexive hostility to the notion of public health policy. But you are far off the mark to insist that tic is no part of the motivation of others who comment here.

                  I am happy to concede that if interpretation based on ejusdem generis is non-exclusive, and leaves room for indispensable powers on other bases, then my critique is less applicable. But I don’t expect ideological small-government mavens are ready to concede my point, not even a little.

              2. I’m guessing they were largely thinking about Small Pox (and similar) and livestock diseases.

                But regardless, the grant of power was given with a list of that nature *despite* flu pandemics being a reasonably common feature of US history. Not just the Spanish Flu, but also 187x (i forget the exact year), 1893 (Russian Flu), 1957 (Asian Flu), 1968 (Hong Kong Flu). That nothing on that list would apparently be of utility against an airborne virus, despite airborne pandemics being something Congress was patently aware of, suggests that they didn’t intend that grant of power to be used against airborne pandemics.

                Just because you don’t happen to like the limitations of the list doesn’t mean the list isn’t circumscribed to specific types of interventions.

        2. “But the rationale here is that evicted people might move, and moving might spread the virus.”

          And we didn’t ban moving.

        3. Brett — Or, the rationale is that people who are not homeless—as evicted people tend to become—are deprived of the best means to protect themselves from the pandemic. Please explain why staying home to avoid exposure to Covid is a pretext.

          1. Because the order didn’t require anybody to stay home. It just required that they not be evicted if they failed to pay their rent. They could spend their rent going out clubbing every night if they wanted.

            A limited order prohibiting evicting people who were in quarantine might have passed scrutiny. But flatly prohibiting eviction in all cases?

            That’s an anti-eviction order, not a public health order.

      2. Steve, I understand your thoughts

        Hopefully the drugs will wear off before too long.

    4. I like the concept of elephants in mouseholes.

      https://www.conservapedia.com/Elephant-in-mousehole_doctrine

      the Secretary “may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.” Id. § 264(a).

      Speaks to regulation of the space. It doesn’t speak to regulating the rental contract.

      1. Bubba, there are countless ways in which each item on the list distinguishes itself uniquely from the others. So what?

        1. Because that’s not how we interpret clauses like this at the end of lists. And also because Congress cannot grant that authority to the CDC’s director.

          Suppose the CDC director decided that removing a member of Congress from office was necessary, or even ask those members of one political party. Does that count as an “other measure”?

  4. “liberal Democrats have good reason to be skeptical of the legality of this order, as much as do conservative Republicans. But liberal judges may not see it that way.”

    Leftist, or maybe “Liberal” but please not small-l “liberal.”

    And there is a third way that an activist left-leaning judge could go — requiring the CDC (and hence Federal government) to compensate the landlords. Courts have done stranger things, and the 5th Amd does say without compensation.

    In any case, I do not believe that this is going to end well…

  5. I am not fond of a non-delegation based decision in this case, because that would seem to imply that, if Congress had directly and explicitly enacted this rule as a law, it would have been within its power. And this looks like a gross constitutional violation on multiple grounds.

    An uncompensated taking.
    Enumerated powers.
    14th amendment.

    1. Uncompensated taking is in a different class than your other two complaints. If Congress has the power to take your rental property your remedy is an inverse condemnation suit and all you win is money after a few years in court. Only if the eviction ban is illegal in some way can you raise a fast-tracked challenge to the order itself.

      1. That makes sense if the uncompensated taking is an individual case. But if it’s a general policy that the taking be uncompensated, doesn’t that make the law itself unconstitutional as a 5th amendment violation?

        1. It’s not a taking at all. It’s a prohibition against a particular legal remedy that the government has no obligation to extend to a landlord on any particular terms in the first place.

          1. Complete and utter nonsense. The particular “remedy” i.e. eviction is because the government has a monopoly on the use of force. It provides that remedy so that you don’t just physically throw your deadbeat tenant out, and prohibits doing so.

            The “remedy” is not some gift that drops out of the sky, but part of the social contract whereby people give up the right to use force in certain cases to enforce their rights. By denying that remedy while keeping the prohibition on self-help in place, the government is breaking the social contract.

            1. Correct. The government has a monopoly on the use of force. In a state of nature, the landlord has no property rights at all.

              Eviction is not part of the social contract. It is one way of enforcing an agreement. Your argument is like arguing that a state that denies contracting parties specific performance and makes them sue for damages instead is effecting a “taking”.

              1. That’s nonsense. In a state of nature, the landlord could physically throw the tenant out.

                Eviction IN PLACE of self-help is what the social contract is.

              2. In a state of nature, the landlord has no property rights at all.

                In a state of nature might makes right, and the landlord has property rights to the extent that he’s willing and able to use sufficient force to protect them.

            2. Agreed, Aktenberg78, I’ll have to remember that Dilan said that.

              What if a landlord hired a private security firm to physically remove deadbeat tenants and their stuff, and essentially gave the middle finger to the feds? It would be prudent to not do so if there were children living there, but otherwise….

          2. First of all, forget this “the government” crap. The federal government is forbidding states to enforce state laws. The states HAVE extended this legal remedy, the federal government is forbidding them to continue. Something they can really only do if they have basis for claiming the law in question is unconstitutional.

            Second, no, the right of property owners to eject trespassers is pretty basic, I strongly dispute any notion that it’s optional for the government to permit it. Maybe to assist, but to permit? Nope.

            1. Yes. I’d be okay with the government saying “Sorry, you’re on your own. You have to remove the tenant yourself” but to refuse to assist while simultaneously prohibiting self-help is obscene.

            2. So your position, to be clear, is that any time the government does anything that restricts the right of a property owner to eject a trespasser, that’s a taking?

              Because that would basically mean that even restrictions on excessive force would be takings.

              1. Right, because telling a person he can’t shoot a trespasser and has to wait for the police after he’s detained him is JUST like telling a person he has to keep a deadbeat tenant for 15 months. JUST like it!

              2. They seize your laptop for other reasons.Not quite but forbidding the own to take possession for six months without compensation (cost of money taxes, etc) sure sounds like a taking. ANd if 6 months is not enough for you, what about a year?
                Where is the line?

              3. So your position, to be clear, is that any time the government does anything that restricts the right of a property owner to eject a trespasser, that’s a taking?

                I think the position is that if the government does something that eliminates the right of a property owner to eject a trespasser, it’s a taking.

              4. Yup. If you tell a property owner they can’t eject a trespasser, that’s a taking.

                Restrictions on means would be different, but this doesn’t even permit moving their property into a storage and changing the locks while they’re away.

              5. So your position, to be clear, is that any time the government does anything that restricts the right of a property owner to eject a trespasser, that’s a taking?

                You don’t differentiate between “restricting” and “eliminating” a right?

          3. It’s not a taking at all. It’s a prohibition against a particular legal remedy that the government has no obligation to extend to a landlord on any particular terms in the first place.

            Too clever by half. While it’s true that the government ordinarily has no obligation to provide a particular legal remedy, if the government outlaws all other remedies and says “You must use this one,” and then says “ha, you can’t use this one either,” then it’s a taking.

            Remember, that’s the situation we’re talking about (at least in many places): not just that the courts won’t help with evictions, but that it’s actually illegal for landlords to undertake evictions on their own, either. If there were an alternative of self-help, that would be a different story.

            1. Too clever by half. While it’s true that the government ordinarily has no obligation to provide a particular legal remedy, if the government outlaws all other remedies and says “You must use this one,” and then says “ha, you can’t use this one either,” then it’s a taking.

              The landlord can sue for back rent and presumably get an enforceable judgment. Nothing in Biden’s order prohibits state breach of contract actions.

              1. Cut the BS. You know as well as I do that these people are judgment proof, and will never pay.

              2. Such a judgement would not be enforceable because in the vast majority of cases the tenants have no assets that can be sized to satisfy such a judgement.

                In cases where utilities are covered by the rent, the landlords should start looking to have the utilities shut off.

                No maintenance on anything until the tenant voluntarily leaves or gets current on back rent.

                1. What’s even worse is that in many of these cases, the tenants have MORE money because of the Democrat Party stimmies and enhanced unemployment, and instead are buying flat screen TVs and new sail phones, then throwing the boxes in the dumpster behind the apartment as an FU to the landlord who knows they have the money, but are stiffing him anyway.

                  1. What the fuck is a sail phone?

              3. The landlord can sue for back rent and presumably get an enforceable judgment.

                “Banning all firearms costing less than $10,000 does not violate Amendment II rights because you can legally buy one for >= $10,000.”

        2. That makes sense if the uncompensated taking is an individual case. But if it’s a general policy that the taking be uncompensated, doesn’t that make the law itself unconstitutional as a 5th amendment violation?

          No; the failure to compensate is the 5th amendment violation.

          1. Ordering a constitutional right violated as part of a law does render the law unconstitutional.

            1. A taking does not violate any constitutional right.

  6. Was this order by the merits panel or a separate motions panel? If it was by a motions panel, is it binding on the merits panel?

    1. I may have found the answer at https://www.sixthcircuitappellateblog.com/news-and-analysis/acknowledging-its-own-error-sixth-circuit-tries-to-provide-clarity-on-notices-of-appeal/

      The legal reasoning of motion panels is not “strictly binding upon subsequent panels” but a decision on a dispositive motion is. What we have here is not a dispositive motion, so not binding precedent.

      1. Thank you. I will be going to federal court soon.

  7. Ejusdem generis? The panel judges have never read Thrust and Parry number 22 from Karl Karl Llewellyn

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