CDC

A Badly Flawed DC Circuit Ruling in Favor of the CDC Eviction Moratorium

The dubious decision breaks a streak of wins for plaintiffs challenging the legality of the CDC order.

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On Wednesday, the US Court of Appeals for the DC Circuit issued a ruling in favor of the legality of the Centers for Disease Control nationwide eviction moratorium, enacted on the theory that it would help combat the spread of the Covid-19 pandemic. The decision breaks a streak  of five straight victories for plaintiffs challenging the legality of the moratorium in court. It is also at odds with a Sixth Circuit appellate ruling against the moratorium, issued in March. The moratorium was  first issued by the Trump administration last September and then twice revived and extended under Biden (most recently until June 30). I summarized the important issues it raises here and here.

The DC Circuit ruling is a setback for opponents of the eviction moratorium. But it has glaring flaws that hopefully will prevent it from having much influence with other courts considering the issue.

The DC Circuit decision is not a final ruling on the merits. All it does is affirm the trial court's decision to stay enforcement of its ruling against the moratorium while the case continues to be litigated. But the appellate judges make clear that they believe the moratorium is likely legal. One of the standards for upholding the stay is whether the government is likely to prevail on the merits. The DC Circuit ruling makes clear that the judges think the answer is "yes":

First, the CDC's eviction moratorium falls within the plain text of 42 U.S.C.
§ 264(a). Congress expressly determined that responding to events that by their very
nature are unpredictable, exigent, and pose grave danger to human life and health
requires prompt and calibrated actions grounded in expert public-health judgments.
Section 264(a) authorizes the Secretary of HHS "to make and enforce such regulations
as in his judgment are necessary to prevent the introduction, transmission, or spread of
communicable diseases from foreign countries into the States or possessions, or from
one State or possession into any other State or possession." 42 U.S.C. § 264(a).1
Congress thereby designated the HHS Secretary the expert best positioned to
determine the need for such preventative measures, twice stating that it authorizes
such measures as the Secretary determines "in his judgment [are] necessary."
42 U.S.C. § 264(a). That text also makes a determination of necessity a prerequisite to
any exercise of Section 264 authority, and that necessity standard constrains the
granted authority in a material and substantial way.

Here, to ensure that the moratorium was tailored to the necessity that prompted
it, HHS carefully targeted it to the subset of evictions it determined to be necessary to
curb the spread of the deadly and quickly spreading Covid-19 pandemic. Notably,
Appellees do not dispute HHS's determination that the moratorium would "prevent the
[interstate] introduction, transmission, or spread" of COVID….

The big problem with this argument—pointed out by the district court in this very same case, and by several other rulings against the moratorium—is that the same reasoning would give the CDC the authority to shut down virtually any activity of any kind, as doing so can always potentially reduce the spread of a contagious disease in some way. It doesn't even have to be an especially dangerous disease, since the statute isn't limited to stopping the spread of diseases that pose unusually great risks. Reducing the spread of the common cold would be enough.

There is no "material and substantial" limit to the CDC's authority here. There isn't  any real limit at all. For that reason, interpreting the statute the way the government and the DC Circuit read it violates constitutional constraints on delegation of legislative authority to executive agencies.

The DC Circuit also emphasizes the "scale and gravity" of the Covid-19 crisis, as a justification for the unprecedented nature of this moratorium. Even if that scale and gravity might have made the order a truly dire necessity when it was first issued in September and extended in January, the same cannot be said today, when widespread vaccination has massively reduced the spread of the disease.

In addition, the logic of the CDC's order  assumes that there would be a large-scale eviction crisis in its absence. This was highly questionable back in September, and is even less plausible today, as the economy continues to recover rapidly. If the CDC's delegated authority is broad enough to continue the moratorium order unchanged, despite the massive changes in the conditions that supposedly make it  "necessary," that just underscores the fact that government's interpretation of the "necessity" requirement imposes no real constraint on the scope of the agency's power.

The DC Circuit also claims that Congress implicitly endorsed the CDC's broad interpretation of the scope of its power when it imposed a similar moratorium in December (which expired at the end of January):

Congress has expressly recognized that the agency had the authority to issue its narrowly crafted moratorium under Section 264. Last December, rather than enact its own moratorium, Congress deliberately chose legislatively to extend the HHS moratorium and, in doing so, specifically to embrace HHS's action "under section 361 of the Public Health Service Act (42 U.S.C. 264)[.]" Consolidated Appropriations Act,2021, Pub. L. No. 116-260, div. N, title V, § 502, 134 Stat. 1182, 2078–79 (Dec. 27,2020).

This makes little sense. Congress' legislative extension of the original CDC moratorium in no way endorses the idea that the agency had the power to take that action on its own. It just means Congress wanted to (temporarily) adopt the CDC's policy, not embrace its legal reasoning. If anything, the temporary nature of Congress' extension of the moratorium implies that Congress assumed that it alone has the power to adopt such a measure, and that it would end as soon as the new legislative authorization expired. Significantly, Congress did not include any language giving the CDC the power to issue future extensions on its own, even though by this time there were already several court cases challenging the legality of the CDC order.

Of course, it's also possible (and in fact likely) most members of Congress didn't know or didn't care about the constitutional issues involved when they enacted a brief extension of the moratorium in December. The extension was part of a massive appropriations bill, and the members had many other issues on their minds, many of them more politically significant than this one. This is the kind of case that highlights the difficulties of ascribing intent to a large collective body, like Congress. Some judges and legal scholars believe that any such ascription is impossible. But even if you think it is feasible in some situations, there is no evidence that Congress intended to endorse the legality of the CDC's actions here.

The nondelegation issue and the rule that courts are required, where possible, to interpret federal law in ways that avoid constitutional problems, should have led the DC Circuit to adopt a narrower reading of 42 USC Section 264, similar to that embraced by the Sixth Circuit and the lower court in this case.

Some of the DC Circuit's other points are more reasonable. For example, the judges are probably right to conclude that an eviction moratorium is within the scope of federal power under the Commerce Clause, under current Supreme Court precedent. I discussed that issue here.

Despite its flaws, the DC Circuit ruling is a significant victory for the Biden administration. It also reinforces the emerging ideological split over the eviction moratorium litigation. As I have noted before, all of the judges who have issued rulings against the CDC order are conservative Republican appointees. With two exceptions, all the judges who voted to uphold it were appointed by Democratic presidents. The DC Circuit ruling continues that pattern: all three judges on the panel are liberal Democrats appointed by President Obama.

Such a left-right split is not inevitable. For reasons I summarize here and here, liberals have their own reasons to be wary of the kinds of sweeping claims of authority made by the Trump and Biden administrations in these cases. The power to shut down virtually any activity at any time is one no administration can be trusted with. Think of what Josh Hawley, Ted Cruz, or Donald Trump might do with it, if one of them comes to power in 2024 or 2028. At the same time, I was probably naive to hope that an ideological division could be avoided over an order that combines Covid emergency measures and property rights, two issues that have repeatedly given rise to ideological splits in many state and federal courts.

Regardless, we now have a circuit split over the legality of the CDC order. That, of course, increases the likelihood that the issue will eventually get to the Supreme Court. The plaintiffs in the DC Circuit case have already asked the Court to step in and overturn the DC Circuit ruling, on an emergency basis.

The current extension of the eviction moratorium expires on June 30. I doubt the Supreme Court will move before then. But if the Biden administration extends the order again, there is a good chance the Supreme Court will take up the case. If that happens, and the current ideological division over this issue continues, the eviction moratorium is unlikely to survive, given the 6-3 conservative majority on the Court.

In the meantime, litigation over the eviction moratorium continues in several other federal courts. We may well have additional lower court rulings before June 30, even if the Supreme Court chooses not to act.

NOTE: The plaintiffs in some of the lawsuits against the eviction moratorium are represented by the Pacific Legal Foundation, where my wife works (though she is not part of the litigation team handling the issue). I myself have played a minor (unpaid) role in advising PLF on this litigation.

UPDATE: 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. I apologize for the mistake. But it only slightly alters the overall pattern of ideological division here.

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  1. All three of those judges were appointed by Obongo. Two are ugly feminist women who didn’t change their last names when they got married. The third is a black raised by a single “mother.” The outcome was predetermined.

    1. “women who didn’t change their last names when they got married”

      Lol, Akkktenturd has to rise to Behar’s challenge I guess!

      1. Every woman I know who hasn’t changed her name is a feminist, leftist dingbat

        1. Oh, come on Akkenturd, we know the better indicator of whether a woman is a feminist (and lesbian of course) is when they’re just not that into you!

          1. Or when they are hideously ugly. Anyone selling a mirror to one is violating the laws against torture.

        2. I can’t see all comments below this one, thanks to the new “block” function, so his may have been addressed. But in case not – let me assure you that even women who take their husband’s name can be feminist leftists.

      2. This is the price for electing a diverse person, who appoints even more diverse federal judges. Come 2024, all get impeached. These little tyrants are the enemies of this nation.

        This is the Party of the hideously ugly seeking their revenge against a country that rejected and mistreated them.

        1. Given methinks one doest protest too much Behar must be one seriously fugly bird.

          1. Turn on MSNBC, judge for yourself. Qualification for the Ugly Model Agency is a highly reliable correlate of Democrat Party registration.

            1. The diverse judges could take lessons from the briefs of the high school students Blackman coached. They are barely literate.

              1. The high school students were barely literate? Polly needs help on grammar with that cracker.

            2. Yes, we all know all the young hotties are in the poor rural counties Trump won, not the big cities! But, hey, coke-adled birds don’t know much about human society.

              1. MSNBC must have an agency contract to find hideously ugly speakers. They are hideous, misshapen unfortunates. They need a trip to the show Botched.

                1. All those hot girls in the trailer parks are what Cockatoo Behar rates!

        2. Incelsayswhat?

    2. Comments such as this are why Comments sections are being eliminated.

      1. Blogs such as this are the reason conservatives are no longer competitive in America’s marketplace of ideas. Fitting, eh?

  2. how is the eviction mortitorium going to effect transmission of covid in the real world?

    hypothetically yes – but in reality no

    1. Tom, an eviction moratorium prevents people who need for medical reasons to shelter from a pandemic from involuntary exposures to dozens of people who will include many jerks who refuse to social distance, or wear masks. Many of those threats to public health will, of course, be deniers like you. Covid-19 has during bit more than a year killed about twice the number of Americans that WWII killed in four years. That happened despite massive social dislocations which did reduce the spread of infection. Please stop lying to yourself, and everyone else, about Covid-19.

      1. lanthrop – you are using the wrong metric to measure the “supposed benefit” from the eviction mortatorium. As a result of using the wrong metric, you have greatly over estimated the effictiveness of the mitigation protocols, including the eviction mortatorium. The correct measure is the delta, / marginal difference.

        The marginal difference is vastly smaller that perceived.
        The additional point is there are far better and less costly protocols that were not implemented.
        The eviction mortatorium had a very trivial effect on any reduction in the overall transmission of covid.

        1. The eviction mortatorium had a very trivial effect on any reduction in the overall transmission of covid.

          How would you know? Given contagion, why couldn’t transmission by one evicted Covid victim re-kindle an entire pandemic? Do you suppose the effect is trivial for an evicted person who gets Covid-19 and dies from it?

          1. Again you using the wrong metric. Its not risk of transmission in place B. The correct metric is the difference in the risk of transmission in Place A vs the risk of transmission in place B. The difference is much smaller than the risk claimed by those advocating for the eviction mortatorium.

          2. lanthrop comment – “Given contagion, why couldn’t transmission by one evicted Covid victim re-kindle an entire pandemic?”

            After 15+ months, I have expected most individuals to have a better concept of how the virus is transmitted, a better concept of the hopes-simpson curve, a better concept of the gomhertz curve, and the relative effectiveness of the various protocols. A better understanding of why the virus is more contagious. Instead the response is “you gonna kill grandma!”

  3. So the court ruled that the Communist Chinese Virus is somehow different from the swine flu, AIDS, and every other virus known t man, and different in a way that suspends the US Constitution.
    Sounds about right for the DC circuit.

    1. So Longtobefree doesn’t understand what the court ruled? Sounds about right.

      1. I’m sure he understands. It seems you don’t, however.

        1. So you don’t get it as well, noted.

      2. So Longtobefree doesn’t understand what the court ruled? Sounds about right.

        To be fair, he almost certainly never read what the court ruled.

        1. longtobe free certainly understands that the court ruled that
          a) the CDC could issue a mortatorium that exceeds the executive branch’s statutory authority
          B) the CDC could ignore the taking under 5A

  4. Page 6 of the order – “On top of that, the obligation to pay all rent due remains, and provision has been made to address the interim shortfalls. Even those tenants who do qualify for protection remain obligated to pay their rent, and to make best efforts to promptly pay in part or full. 86 Fed. Reg. at 16,732 (definition of “Covered person” paragraph (4)); id. at 16,738. The order specifically preserves the landlords’ legal right to recover all rent owed with interest and penalties. See 85 Fed. Reg. at 55,294–97. In the meantime, Congress has allocated substantial sums of money for rental assistance that is intended and designed to run to landlords like Appellees. See, e.g., Consolidated Appropriations Act, 2021, div. N, title V, § 501, 134 Stat. at 2070-78.”

    Millet, Pillard and Wilkins have a serious detachment from reality

    While the past due rent remains due- collectibility is near zero. Collection on past due rent more than 30day deliquent is below 30% in the real world and less than 15-20% after 60days.

    1. Don’t give them any credit. They know full well these people will never pay. They’re being lying dishonest leftists, not detached.

      1. Yeah, those lying leftists upholding a Trump policy.

        1. I thought it was unconstitutional when Trump did it, when congress did it, when Biden did it.

          1. Concur – its still a taking under 5A
            Though the statute passed by congress was only effective from Dec 27, 2020 through jan 31, 2021 with possible extension.

          2. I think it’s Constitutionality is dubious as well, but it’s honestly hilarious to see the usual pro-Trump fans here criticize this policy as something coming from “the left” or Democrats considering that it originated in the Trump administration.

  5. Millet, Pillard & Wilkins pretend the 5A takings is not an issue

    Millet Pillard & Wilkins greatly over rely on the HHS determination of the relative increase in the risk of Covid transmission due to an eviction. The reality is the delta between risk of transmission of a covid between an non evicted tenant vs an evicted tenant is near zero. The key test is the Delta, not the total risk, just the delta which remains very small.

    1. “Appellees do not dispute HHS’s determination that the moratorium would “prevent the [interstate] introduction, transmission, or spread” of COVID”

      1. The issue before the court was whether HHS had the statutory authority to issue the mortatorium. The issue of the effectiveness of the mortatorium was not relevant to whether HHS had the statutory authority, as such, the effectiveness was likely not addressed in any meaningful manner.

        That does not change the science of the effectiveness of the delta between eviction actions or non-eviction actions which remains trivially small

      2. As queen note in the opinion – “Appellees do not dispute HHS’s determination that the moratorium would “prevent the [interstate] introduction, transmission, or spread” of COVID”

        that statement is highly misleading –

        The CDC has the burden of showing that the mortatorium has some level of effectiveness in reducing the spread. As noted in the plaintiffs’s pleadings / motions, the CDC provided no support for potential effectiveness of mortatorium.

        The DC court of Appeals then deceptively stated that the “… Plaintiffs did not dispute the effectiveness …”

        1. “The CDC has the burden of showing that the mortatorium has some level of effectiveness in reducing the spread. As noted in the plaintiffs’s pleadings / motions, the CDC provided no support for potential effectiveness of mortatorium.”

          Appellees do not dispute HHS’s determination that the moratorium would “prevent the[interstate] introduction, transmission, or spread” of COVID. Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 55,292,55,295 (Sept. 4, 2020) (“The statistics on interstate moves show that mass evictions would likely increase the interstate spread of COVID-19.”). The agency reasonably recognized that evicted people must move, and that a time-limited eviction moratorium would directly promote the self-isolation needed to help control the pandemic. Id. at55,294–55,295; Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 86 Fed. Reg. 16,731, 16,733 (Mar. 31, 2021). The moratorium also applies only to those renters that the agency determined otherwise would likely need to move to congregate settings where COVID spreads quickly and easily, or would be rendered homeless and forced into shelters or other settings that would increase their susceptibility to COVID, the uncontained spread of the disease, and the adverse health consequences of its contraction. 86 Fed. Reg. at 16,735.

          1. Queen – try to actually read the pleadings including the motion for summary judgment.

            A) the Burden of prove is on the CDC / HHS .
            B) the pleadings show that the plaintiff’s did dispute the conclusion held by the CDC.
            C) that statement in the opinion is dishonest misrepresentation of the pleadings.

            1. Supply a link?

              1. google the name of the case – “alabama ….:”
                there are several links to the motions and other pleadings filed in the case.

                If you had actually read the pleadings, you would have noticed the statements in the opinion were dishonest misrepresentations of the actual facts.

  6. “liberals have their own reasons to be wary of the kinds of sweeping claims of authority”

    Modern “liberals” do not think anything is outside the scope of government power. Regulatory state uber alles.

    Sadly, modern “conservatives” often agree, they just are slower to do things.

  7. “For example, the judges are probably right to conclude that an eviction moratorium is within the scope of federal power under the Commerce Clause, under current Supreme Court precedent.”

    And, as comments pointed out when you explained this, that’s only because current Supreme court Commerce clause precedent has illegitimately negated the effect of everything in the clause after “to regulate”.

    1. I don’t think I’ve ever seen a ‘For Rent’ ad or sign that said ‘will only rent to those who live in this state’

      1. By that ridiculous and illegitimate standard, there is nothing that doesn’t fall within the purview of the Commerce Clause.

        1. So you don’t get the standard posited.

          Isn’t it funny how the supremacist eugenicists are often so darned dumb?

      2. That doesn’t make it interstate commerce.

        1. Offering a product to an out of state buyer isn’t interstate commerce?

          1. Offering a product to an out of state buyer isn’t interstate commerce?

            Under current Supreme Court precedent, sure it is. Under a more textual approach, I would say no. Shipping a product to an out of state buyer would be interstate commerce, but in this case the product doesn’t move.

            Moreover, this moratorium is on evictions, not on “offering a product to an out of state buyer.” For any vacancy, any landlord is free to rent to an OOS buyer without violating the CDC’s ban.

    2. And as other comments pointed out, the Court has not negated the text after “to regulate” as explained by Scalia in his Raich concurrence:

      activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Rather, as this Court has acknowledged since at least United States v. Coombs, 12 Pet. 72 (1838), Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause.

      1. Ah, yes: The “Convenient, and, eh, whatever” clause.

        So, they used the N&P clause to erase those words. They still are effectively rendered moot, with Congress exercising authority over exactly what the clause was written to deny it authority over.

        1. I don’t think the clause was written to deny Congress authority over things necessary and proper to regulate commerce amongst the states, in fact it was textually an explicit grant of power (with an implied restriction).

        2. Perhaps I am merely restating Queen’s point, but I don’t see how the Commerce Clause forbids regulations of intrastate commerce that are necessary and proper for carrying into execution regulations of interstate commerce.

          1. “but I don’t see how the Commerce Clause forbids regulations of intrastate commerce that are necessary and proper for carrying into execution regulations of interstate commerce.”

            I don’t think it should, as long as “intrastate commerce that are necessary and proper for carrying execution regulations of interstate commerce.” is interpreted very narrowly.

            If it’s interpreted too broadly it effectively reads the word interstate out of the interstate commerce clause and gives the US congress free license to regulate all commerce.

            1. As before as a textual matter, I don’t think the Commerce Clause forbids Congress from regulating all commerce if doing so is necessary and proper for carrying into execution a regulation of interstate commerce.

              Also, NFIB held that regulations that force people to engage in commerce who weren’t already engaging in a related economic activity is not necessary and proper.

              1. And I think that’s an absurd reading of the text.

                1. I don’t doubt you think it is an absurd result if all regulations of intrastate commerce meet this criteria (noting per NFIB, not all do). But what I do not follow is the textual basis for your conclusion that the result is absurd. It seems to me you are appealing to some extra-textual consideration.

          2. The Tenth amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

            Because the Interstate Commerce clause qualifies Congress’s regulatory powers, exercises of power contrary to those qualifications are “powers not delegated”.

            The very purpose of the 10th amendment was to make it unambiguous that the federal government was a government of enumerated powers, and lacked those powers it wasn’t explicitly given.

            Reading the N&P clause to gut the 10th amendment and render moot explicit limits to grants of power is fundamentally illegitimate.

            1. The very purpose of the 10th amendment was to make it unambiguous that the federal government was a government of enumerated powers, and lacked those powers it wasn’t explicitly given.

              Of course. But, the N&P Clause explicitly grants powers and thus powers granted by it by definition comport with the Tenth Amendment.

              Your problem continues to be you read everything up to the N&P Clause as establishing the limits of Congressional power, which in effect makes the N&P Clause a nullity.

              1. Nonsense. N&P just means that things ancillary to the prescribed powers were allowed. For example, if Congress can establish post offices, then it can hire mail carriers. It doesn’t grant new powers.

                1. Precisely. It’s the “necessary” and “proper” clause, not the “convenient” and “eh, whatever” clause. Laws necessary to put into effect delegated powers are OK, the problems come in when you start getting laws to accomplish things not delegated, on the basis that some aim that seems to fall under an enumerated power might be less than totally satisfied otherwise.

                  We have enumerated powers, not enumerated purposes.

                  1. It appears one of your problems is with the interpretation of “necessary” from McCulloch. That being said, I agree the clause only authorizes regulations that carry into execution, and thus are ancillary to, an enumerated power. Our disagreement is whether a regulation that substantially affects interstate commerce is such an ancillary power.

                    1. I have two problems here: One is interpreting “necessary” to mean “convenient”, while giving “proper” no meaning at all.

                      The other is that the clause, explicitly, permits regulation of interstate commerce. Not all commerce because some of it might be interstate. Not all things that might effect interstate commerce.

                      Just the interstate commerce itself.

                      Since the apartment does not travel across state lines to the renter, its rental isn’t interstate commerce, and neither are any evictions, regardless of whether the renter is ordinarily domiciled in a different state from the apartment.

                      Shipping a hamburger from Ohio to Michigan is interstate commerce. Serving a hamburger to an Ohioan in Michigan is not.

                      Since federal judges are selected and confirmed by the very people whose authority they’re ruling on, they have a tendency to ‘interpret’ that authority very expansively. Ever more expansively as time passes. Unreasonably expansively.

                      The Interstate Commerce Clause contains language explicitly limiting the reach of the power granted. It is judicial malpractice for the courts to abolish those limits under any pretext.

                    2. One is interpreting “necessary” to mean “convenient”, while giving “proper” no meaning at all.

                      The former is a problem with McCulloch. The latter is not the case. “Proper” has been construed to prohibit Congress from commandeering the states (Printz) and requiring people to enter commerce when they aren’t already engaging in related economic activity (NFIB

                      the clause, explicitly, permits regulation of interstate commerce. Not all commerce because some of it might be interstate. Not all things that might effect interstate commerce.

                      In this part of your argument you are (again) you reading everything up to the N&P Clause as establishing the limits of Congressional power, which in effect makes the N&P Clause a nullity.

                    3. In this part of your argument you are (again) you reading everything up to the N&P Clause as establishing the limits of Congressional power, which in effect makes the N&P Clause a nullity.

                      I don’t think it makes the N&P Clause a nullity. It just makes it much much less than we’re used to. The N&P by its own terms is defined in relation to “everything up to the N&P clause,” rather than being an additional, independent power.

                      If regulating intrastate commerce could be interpreted as being N&P to regulate interstate commerce, then that would allow the N&P clause to swallow the notion of enumerated powers. They could have written “the power to regulate commerce,” but they didn’t. That they limited it with one breath and then with the next said, “Yeah, okay, that limitation doesn’t really exist” doesn’t make any sense.

                    4. If regulating intrastate commerce could be interpreted as being N&P to regulate interstate commerce, then that would allow the N&P clause to swallow the notion of enumerated powers.

                      As with Brett, I think you are assuming the Commerce Clause establishes a hard-and-fast rule that any regulation of intrastate commerce is not permissible. But textually, that’s not the case if a regulation of intrastate commerce is necessary and proper to carry into execution a regulation of interstate commerce (noting that such a regulation is not an independent power).

        3. Brett,
          Completely off-topic, I suggest that you look at this medRvix paper,
          Emerging SARS-CoV-2 variants of concern evade humoral immune responses from infection and vaccination,” doi: https://doi.org/10.1101/2021.05.26.21257441
          Make of it what you will.

          1. That is interesting. I’ll probably get that booster shot, when they come out with it.

  8. DC Circuit DNC Rubber Stamp.

    1. Democrats have never said that court packing doesn’t work. The Tim Donaghys of judges.

  9. Did you ever notice how the left is always on the side of people who want to break contracts and steal goods or services?

    1. It is in their Manifesto

    2. Don’t know about that, it’s not the Left that, say, wants to negate union contracts (right to work laws), steal land for a border wall, etc.,

      1. You’re an idiot. Right to work laws don’t negate union contracts. They just prohibit unions from being allowed to FORCE people to join unions.

        1. They prohibit unions and employers from contracting to only hire union members.

          It’s also not the left that wants to force social media companies to contract with right wing figures.

  10. Small government types have been doing pretty well in court with a constitutionally dubious argument—that the notion of limited government means that every government power must have some limit sufficient to prevent it from being fully effective. That’s the idea Somin evokes when he says, “There is no ‘material and substantial,’ limit to the CDC’s authority here. There isn’t any real limit at all.”

    In principle, why should there be? The constitutional end sought is legitimate. Congress has found necessity. The chosen means—an eviction moratorium—is a proper means—it is reasonably tailored to accomplish the end sought. It does reduce contagion during a deadly pandemic.

    I suggest that the notion of limited powers does not mean, and has never meant, that every congressional power must be picayune, lest government accomplish too much. “Limited powers,” means instead that some powers are denied entirely, but others are authorized. Except under specific enumerated constraints, all congressionally authorized powers ought to be presumed sufficiently broad to fully accomplish whatever legitimate constitutional ends congress may specify.

    1. This has nothing to do with Constitutional “Limited Powers”. This has to do with a grant of power by Congress which was specifically worded but is having those specific words be negated by the court.

      1. Again, I don’t know of any landlords that when they offer the place for rent have a ‘will only rent to those within the state’ clause in mind for the contract. In fact, it’s really common for people to come from one state to rent a place in another.

        1. I’m not making a Commerce Clause related argument. So what’s your point?

          1. My bad (though I think non-delegation arguments are, if anything, worse than Commerce clause arguments).

            1. But it’s not a non-delegation argument either. It’s a textual boundary argument. The DC circuit is saying that the authorization gave the CDC unbounded authority. The other courts have said this is an illogical conclusion, because there’s specific bounding language in the law. This language does leave some room for bright line drawing exercises, but the the existence of the language means the authority grant has bounds.

              1. “The DC circuit is saying that the authorization gave the CDC unbounded authority.”

                It seems they argued the statute “makes a determination of necessity a prerequisite to any exercise of Section 264 authority, and that necessity standard constrains the granted authority in a material and substantial way” and then found “the moratorium fits within the textual authority conferred by Section 264(a) to adopt measures necessary to prevent the spread of a pandemic”.

    2. COVID 19 is spread by humans. Killing all the humans would stop the spread of the virus. Is it your position that government has the power to do that?

      I’m trying to make you admit that government power must have limits.

      1. But that’s not really the argument. The Police Power is rather broad. It covers all sorts of items, including public health. But it’s also not Federal. The issue at hand is a specific grant of authority from Congress to the Administrative branch. And that grant being interpreted as unlimited despite the fact that Congress wrote words that quite strongly imply a boundary.

      2. So you’re against the death penalty?

      3. Archibald, let me challenge you a bit. I am happy to admit that ours is a system of limited government power. Before we say more about that, please tell me where you think the power to define those limits, and keep government operations constrained within them, comes from.

        I am not looking for philosophical musings. I am looking for an explanation of the practical problem and how it is solved. Before answering, please reflect for a moment that any argument that some part of government is what does it would be circular and self-defeating. For instance, an example of that kind of insufficient explanation would be, “The Constitution gives that power to the courts.”

        So tell me, what actual power greater than government’s exists to force government to stay within constraints? If you come up with the right answer, you will see why your rhetorical question makes no sense.

        1. So, I think I see where you’re going with this.

          As a formal matter, the answer is that there are two constraints:

          1) Judicial review.
          2) Political pressure from the public.

          It’s true that #1 is unlikely to be effective if it lacks either public support, or the support of elites within government, either by itself will usually suffice to allow the courts to constrain government, but you need at least one of them.

          Now, what reduces the chance that the courts will have such support in constraining the government?

          Maybe, apologists for unfettered federal power arguing that the formal limits don’t really mean what they say?

          That’s right: YOU are undermining the capacity of the courts to enforce Constitutional limits on federal power. YOU, bucko. Look in the mirror.

          1. Brett, you fell for it. The courts are government. Your argument is circular. You haven’t answered the question at all.

            1. Your premise “any argument that some part of government is what does it would be circular and self-defeating” is wrong. That is precisely what checks and balances is about. In your theoretical world it might not work, but in the real world it does: when the court said you can’t execute rapists, the government stopped executing rapists. When the court said Bush and then Biden were president, they were. Etc, etc, etc.

    3. The Government isnt effective because they dont have enough power. Neato theory.

  11. Frankly, the suggestion that, during a limited time of pandemic fatal, highly transmissible respiratory disease, police officers (or private enforcers) shouldn’t go into the homes of the hundred thousand poorest citizens, pick up all of their belongings and throw them out onto the street, and send the citizens to either find shelter or travel to distant family homes seems an entirely reasonable one. Even if only to protect the nation’s sheriffs. The landlord has no present possessory interest to suffer irreparable injury, and the law will certainly permit them to distrain and bankrupt their former tenants once everything settles down.

    Mr. D.

    1. Or, conceivably (call me crazy on this one) but like Sweden, which is doing swanky lately, or like during past pandemics like the Swine Flu a few years back, we don’t shut everything down causing people to lose their jobs in the first place. Just a thought.

      Mr. MK.

      1. Another insurrectionist heard from; DHS, please take note and use appropriate action.

    2. “distrain”

      What state allows landlords to seize property of residential tenants?

      “bankrupt their former tenants”

      What good will that do landlords?

      1. Former tenants could conceivably be distrained. A quick survey of the landlord sites on the web indicates that money judgments and future recoupment seems to be the order of the day, given the hefty penalties for unofficial evictions. Leases appear to be the one form of legal contract in which one side always is held to the full terms of any deal that falls apart. I suspect that a small downside of the moratorium is that unsophisticated tenants see it as a safe-harbor in which to hide from the slings and arrows, and aren’t making their cases against the judgments. (But I have no knowledge, information, or wisdom to back that guess up.)

        Mr. D.

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