What Happened to the Legality of the CDC Eviction Moratorium Between Saturday and Tuesday?

President Biden decided to call Justice Kavanaugh's bluff.

On Saturday, the CDC allowed the eviction moratorium to lapse. According to several reports, the Biden Administration tried, and failed to find a legal way to extend the policy. Recall that five Justices found the moratorium was illegal, but only four were willing to do anything about it. I speculated that the Biden Administration was unwilling to call Justice Kavanaugh's bluff.

In the wake of that decision, prominent Democrats including AOC criticized the Biden Administration for not taking action to help renters. The WH defended the action, saying there was no way to extend the policy.

This morning, I enjoyed reading Mark Tushnet's post at Balkinization. He stated (correctly) that there was no actual Court decision saying the moratorium is illegal. Thus, the administration could, in good faith, simply extend the policy. And, Tushnet offered some advice to Biden: "Go for it if you think that the political benefits of imposing the moratorium exceed the political flak you'll get – and you will get some – from 'acting like Governor Faubus.'"

Orval Faubus, meet Joe Biden.

This evening, the CDC issued a 19-page order that extends the eviction moratorium in certain high-transmission areas. If I had to guess, this order had been vetted, but the politicos were unwilling to release it for fear of a Supreme Court rebuke. But when the pressure mounted, President Biden caved, and followed Tushnet's strategy. He decided to call Justice Kavanuagh's bluff. Now, it will be the evil Supreme Court, and not the President who has to take the political hit.

Update: The Solicitor General offered this representation on June 24:

This letter is to inform the Court that today, the Centers for Disease Control and Prevention (CDC) published an order extending its temporary moratorium on residential evictions, previously scheduled to expire on June 30, 2021, through July 31, 2021. In issuing the order, the CDC stated: "Although this Order is subject to revision based on the changing public health landscape, absent an unexpected change in the trajectory of the pandemic, CDC does not plan to extend the Order further." Order at 6; see also id. at 12.

There was no "unexpected change in the trajectory of the pandemic." There was political pressure.

Comments

[SomeGuy 2]

"in certain high-transmission areas."

A source familiar with the effort said the announcement would cover 80% of US counties and 90% of the US population.

https://www.cnn.com/2021/08/03/politics/eviction-moratorium-high-covid-spread/index.html

On the plus side if you live in the other 20% of the country, you now own your property after an 18 month government taking! If you live in the 80%, the government plans to continue its seizure of your home and not compensating you. Enjoy.

[Brett Bellmore]

The Supreme court should convene on an emergency basis, and issue that injunction. Like, tomorrow.

[Aktenberg78]

Of course not. They'd rather let it "percolate," like they've been doing with gun cases for over a decade.

[Brett Bellmore]

Not saying they will, just that they should, it's the only appropriate response to this.

Kavanaugh decided it wasn't worth issuing an injunction against the constitutional violation, because it was due to end soon. Now he's had it rubbed in his face that it isn't going to end any time soon.

He's got to either agree to the injunction, or personally own the violation.

[Chernobog]

That's not how this works. That's not how any of this works. The Supreme Court doesn't issue injunctions, and it certainly doesn't issue them sua sponte.

[Brett Bellmore]

It works the way the Supreme court wants it to work.

In this case they could rule that the injunction they refused was 'improvidently denied'.

And should, after that big upraised finger Biden gave them.

[Aktenberg78]

In all honesty, why should anyone be surprised the Democrats act this way? They do it because THEY GET AWAY WITH IT!

[Chernobog]

Tell me you don't understand Supreme Court procedure without telling me you don't understand Supreme Court procedure....

[Merlin's Beard]

I represent landlords for a living, so this is a topic near and dear to my heart. I just read all 19 pages of the new order.

https://www.cdc.gov/.../covid-eviction-declaration.html

To figure out where this order applies, you have to read page 12, which states in relevant part: "This Order applies in U.S. counites experiencing substantial and high levels of community levels of SARS-CoV-2 as defined by CDC, as of August 3, 2021. So what does "substantial" and "high" mean? You have to read footnotes 48 and 49 for that. Those footnotes in turn refer back to footnotes 7 and 8. Except that footnotes 7 and 8 don't refer to what footnotes 48 and 49 say they do, and you have to look a little further to realize it's actually footnotes 9 and 10 they're talking about.

So footnotes 9 and 10 define "substantial" to mean "(1) 50.99 – 99.99 new cases in the county in the past 7 days divided by the population in the county multiplied by 100,000; and (2) 8.- 9.99% positive nucleic acid amplification tests in the past 7 days (number of positive tests in the county during the past 7 days divided by the total number of tests performed in the county during the past 7 days)." And "high" is everything above "substantial".

Where, pray tell, should we be getting this data from, assuming you even understood what the hell that last paragraph meant? To tell if your county is in the "substantial" or "high" category, you can continue to read the word salad that is footnote 9 and you will find a hyperlink embedded in the footnote: https://covid.cdc.gov/covid-data-tracker/#county-view. Click through and you will find a map that is 1 - 2 days old. You can then check to see if your county is colored orange (substantial) or red (high).

Guess what? That covers most of the country. In Iowa, where I practice, 77 out of 99 counties are affected. Want to get off the list? You'll need to no longer experience "substantial" or "high" levels of community transmission for 14 consecutive days. And if you're not already on the list, if you shift into the "substantial" or "high" category, the order immediately applies.

How the @#$% is any judge going to evenly apply the law here, using a map that's always a day or two behind? How many magistrates are actually going to read the order, go on the detective hunt I just did, and figure out what's what?

And of course, that's the point. Unless SCOTUS steps in and bigfoots all of this, courts are going to be hopelessly behind, and we'll be months into this before anyone definitively and finally tells the CDC that they can't do that.

[Commenter_XY]

Wow....What a great response on the actual interpretation of the CDC statute. You tracked that down. Thank you!

[John Marshall]

Thank you for your reading about how to find where the CDC's order would apply if the order has an effect.
Doesn't every court, even the humblest common-pleas court, have inherent power to find that a governmental act lacks an effect because the act is contrary to law? If a landlord petitions for an eviction, should the court grant it (treating the CDC's order as a nothing)? If so, would the burden of pursuing reviews and appeals be on the evicted tenant?

[Merlin's Beard]

As a general matter, courts are only supposed to consider the arguments put in front of them by the parties to a case. Of course, common-plea courts, small claims courts, justice-of-the-peace courts, etc. are the "Wild West" of litigation. The judges in those courts can be like a law onto themselves, because they know that so few appeals will be filed on them.

If a landlord files a complaint or petition alleging a cause of action for eviction, it would be on the tenant to raise the defense of the CDC moratorium, at which point the landlord could argue the inapplicability of the moratorium (because it's illegal, unconstitutional, and/or doesn't apply to the facts of the case). Or a landlord could choose to file suit in federal or state district court and seek declaratory and injunctive relief.

[DaivdBehar]

32 out of 20 million people got hospitalized with bronchitis. Shut down the economy immediately.

Fractions with their denominators were covered in 5th grade. Lawyer math stops at the 4th grade, that needed to count money.

[Brett Bellmore]

Quoting Tushnet:

"I’m a skeptic about the proposition that adherence to norms other than those inscribed in the Constitution is necessary to preserve the core values of constitutionalism. So, were I talking to President Biden, which of course I’m not, I’d say “Go for it if you think that the political benefits of imposing the moratorium exceed the political flak you’ll get – and you will get some – from ‘acting like Governor Faubus.’”"

If the President's duty to take care that the law is faithfully executed, and his duty to uphold and defend the Constitution, don't combine to 'inscribe in the Constitution' a norm that Presidents should not exercise powers they have no plausible constitutional or statutory basis for, I don't know what could.

Tushnet IS Holmes' bad man. I've not seen any sign in years that he actually cares about whether the Constitution is violated. If you're a Democrat, and it looks like you won't be personally punished for it, do it.

That's the advice of a constitutional scholar?

[Armchair Lawyer]

Ever wonder why rents are so high?

Perhaps it's because of the rent moratorium, and people don't want to "rent" their property without being paid for it.

[Da5id]

Were I a landlord I'd be looking to sell my property. Currently high housing values make it a good time. But of course getting the tenants out could be a bother given the now apparently basically permanent "moratorium" . Which I guess will last until there are 0 cases of COVID and no more variants arising or something like that.

[SomeGuy 2]

Cash for Keys is a common form of self-help and if I was the landlord I'd be seriously considering it. Forget about the back rent that you're never going to collect anyway, get the tenant out with $5,000 cash, sell the house, and consider this an expensive lesson that you don't actually own anything, the government does.

[Syd Henderson]

It's because Jerry McMillan wasn't elected President.

[Longtobefree]

So can the supreme court jail all the CDC employees for contempt of court?
I hear there are some unused cages near the border - - - - - - - - - - -

[Aktenberg78]

We no longer have a constitutional republic. Biden is a corrupt, lawless thug. This is exactly why January 6th was justified. The only problem was the people were far too law abiding. The only thing tyrannical thugs understand is force.

[Aktenberg78]

This is what the left means by "norms" and "civility."

[Aunt Teefah]

The face of America’s landleech class, folks.

Mao wasn’t right about everything, but he was definitely right about one thing . . .

[Brett Bellmore]

Take a long walk on a short dock, Auntie. The only leaches here are the ones refusing to pay their rent.

[Aunt Teefah]

Sounds like someone is testy that they have to wait a few more weeks for their gravy train to get rolling again. Stay mad about it.

[Da5id]

You think this (or other enhanced precautions) will end in a few weeks? That is surely willfully naïve. I mean the 2 weeks to bend the curve seems to have stretched a bit since last March.

I don't object to stopping evictions personally. But it should be done by a legitimate legal mechanism, and the cost should be shared across the tax base rather than just the owners. IMO of course.

[Don Nico]

Teefah,
Do you have your bankruptcy papers ready when the order is ended by injunction?

[Aktenberg78]

Go f*ck yourself, you disgusting worthless c*nt

[Da5id]

Kavanaugh invited this. He should have just joined the minority and made a clear statement that the CDC couldn't use a flimsy pretext to assume massive delegated powers. Congress can reinstate the moratorium if it so chooses. The ensuing litigation saying it is a taking which must be compensated would also be interesting (not a lawyer, dunno if such suits have a chance).

[Commenter_XY]

Da5id....I initially thought the same thing about Justice Kavenaugh; upon reflection, I have changed my outlook. My own thought is Justice Kavenaugh ruled the way he did in an attempt to preserve institutional tradition. I do not think it was naivete.

Times are no longer what they once were; I think that is the lesson learned here.

[Brett Bellmore]

An institutional tradition of letting the executive branch violate the Constitution is not worth preserving.

[dwb68]

The Biden admin simply looks like it waffled and then caved to the progressives. They agreed with the SC at first.

More likely: When the Supreme Court smacks it down (actually, I think its more likely that they will leave the smacking to the circuit courts and simply deny cert) the Biden admin will merely say "I told you so" to the progressives.

[Da5id]

More like they will say "we did what we could". And the conclusion will be "time to pack the court so those heartless conservative judges don't throw people out into the street".

[dwb68]

Nah, the time to call the SC bluff was weeks ago. Now they look feckless. Esp following the 180 on masks and vaccines.

[dwb68]

The Biden admin is already in trouble with the progressives on multiple fronts, including the budget and Breyer (for failing to pressure him to resign).

This was an appeasement that will demonstrate who is really in charge. Wont take too many more events like this to ensure GOP domination in the 2022 elections. The House Democrat "moderates" are already starting to balk - they refused to authorize extending the CDC order.

[Rev. Arthur L. Kirkland]

Where do you expect to find enough uneducated racists, superstitious gay-bashers, selfish xenophobes, obsolete misogynists, backwater gun nuts, disaffected clingers, and anti-social, faux libertarian Federalist Society members to position the Republicans for "domination" in the 2022 elections?

Adding "virus-flouting hayseeds" to backwardness and bigotry on the list of signature elements of the Republican Party -- especially among younger Americans -- is no way to reverse the tide of America's culture war.

[Brett Bellmore]

Finally lost my patience with you, moron.

[dwb68]

I just put him on mute. I did unmute to see what the fuss was about.

A moronic post like that, one long troll rant devoid of any facts or rational arguments, indicates I'm right.

[Bored Lawyer]

The Ballad of Andrew Cuomo
He was the son of Mario,
To the governor’s mansion he did go.
“To the nursing homes!” did he cry,
And sent grandma and grandpa there to die.
“Don’t care about that,” said the state’s chief counsel,
“But he fondled women? Now him will we cancel.”

[Commenter_XY]

A good first effort, Bored Lawyer. 🙂

[Jimmy the Dane]

We are no longer a nation of laws, but of feelings.

This is not going to end well.....

[dwshelf]

Kavanaugh has been played for a fool.

Hopefully a lesson learned.

[dwb68]

I doubt it. Roberts was played a fool in New York Rifle in pistol, then his brightest young apprentice Kavanaugh was played a fool in this case (and a few others).

People as naive as Kavanaugh and Roberts dont learn, they rationalize and dig in deeper.

[Brett Bellmore]

Fools seldom learn the right lesson. If they could, they wouldn't be fools in the first place.

[circleglider]

Couldn’t agree with you more. But I think the better adjective to describe Kavanaugh is feckless.

[CindyF]

"No rent payment for you! No rent payment for you! And No rent payment for you!"

"You? Oh, you own the building. Pay your damn mortgage! These people need a place to live! And, don't forget the property tax is due! Pay up you deadbeat"

Gotta love unelected government officials!

[Flight-ER-Doc]

High Crime and Misdemeanor.....

[Da5id]

Seems far fetched. Though in the same way you can "indite a ham sandwich" the Trump years did show that congress can impeach pretty loosely. I wasn't actually a fan of the orange man, but was dubious that either of the two impeachments was warranted.

[Ben_]

Intentionally and knowingly issuing an unconstitutional order is a clear violation of the oath of office.

So yeah.

[Rev. Arthur L. Kirkland]

Politically, it is difficult to see Biden losing here.

This seems to make the clingers especially cranky today.

[Bored Lawyer]

Since you claim to believe in "science," one of the basic tenets of science is that any hypothesis must be disprovable. Otherwise it is not science.

What needs to happen to disprove your thesis? The Republicans take control of both houses of Congress in 2022? They do so by a landslide? Pray tell.

[Brett Bellmore]

Tushnet demonstrates my thesis that a great many 'constitutional scholars' study the Constitution in the same spirit pest exterminators study entomology: To learn how to most effectively kill it.

[dwshelf]

People as naïve as Kavanaugh aren't often as publicly exposed as has occurred with this case.

[Bored Lawyer]

Something here does not compute to me.
To evict someone, a landlord has to go to court and prove a basis for eviction, non-payment of rent in the typical case.
Now the tenant could raise the CDC moratorium as a defense. Then the landlord will argue, the moratorium is invalid. SCOTUS said so.
Wouldn't the court be required to follow SCOTUS? So how does this help?

[Brett Bellmore]

The problem here is that the moratorium has never technically prohibited you from going to court and proving you had a basis for eviction. It prohibits the eviction itself, declares it to be illegal and levies a truly massive, wildly disproportionate fine on any attempt to carry it out.

Convincing the state court to issue an order it would be 'illegal' to carry out is kind of tough.

Why the court couldn't, as an alternative, order the back rent paid, and allow seizure of assets as an alternative remedy I don't know. Except that you'd still have a deadbeat tenant with access to your property, only they'd now be pissed off, too.

Massive vandalism would be virtually inevitable.

[Commenter_XY]

So....a landlord could elect to pay the fine, correct?

I mean, if you want them out, then you pay them to leave. This happens routinely in the business world. Big business pays people to go away all the time.

Separately: Our private property rights are being destroyed.

[Brett Bellmore]

The fine is probably on the order of 10-20 times the back rent owed, at least. It's hugely, ruinously punitive, if you could afford to pay it, you could more easily afford to let the tenant stay rent free for another year or two.

But, as I said, you can't evict without a court order, and it's hard to get courts to issue orders it would be 'illegal' to carry out. You'd need the judge to be in on generating the test case, at the least.

[dwb68]

Its also hard to get tenants out even when you do have a court order. And when the Sheriff shows up, god knows what angry tenants have done to the property. Like pour plaster down the drains and toilets.

[Chernobog]

(1) The Supreme Court did not invalidate the previous moratorium.
(2) This is a new moratorium with a somewhat different justification.

[Bored Lawyer]

I thought the COurt said the CDC lacked authority and Congress needed to give it authority first.

In any event, if I were Iandlord, I would sue for a declaratory judgment that the law is invalid, and then proceed with eviction. If that is what you want to do.,

[Chernobog]

Justice Kavanaugh's concurrence said that, but it isn't controlling. It strongly implies that Kavanaugh will not uphold the moratorium if the issue is before the court again, but the actual result of the Supreme Court's ruling is that the moratorium was upheld.

[Ben_]

Prediction: nationwide injunction against this new order tomorrow or Thursday.

[Chernobog]

Look, you may think this is entirely political. It may be! But that also doesn't change the fact that yes, the trajectory of the pandemic did change over the last month.

[Brett Bellmore]

Which also doesn't change that the moratorium is unconstitutional, and changed trajectories don't amend the Constitution.

[bratschewurst]

There was no "unexpected change in the trajectory of the pandemic."

Are we channeling Richard Epstein now?

[rsteinmetz]

Let's see, since late June:
A slowdown in vaccinations
The spread of a new variant
An increase in infections
An increase in hospitalizations
An increase of deaths
Sounds like a change in the trajectory to me, unless you think it was expected.

[santamonica811]

"...There was no "unexpected change in the trajectory of the pandemic." There was political pressure...."

Is this remotely plausible? There have been huge increases in Covid hospitalizations recently. Huge increases in those infected (at least, ones with positive tests). Regardless of how one feels about how Trump and Biden have dealt with the crisis (and regardless of what you think the govt should be doing now and going forward to deal with it); it seems odd to conclude that there have been no unexpected changes in the trajectory. That just seems to defy logic.

[Aktenberg78]

And then in October, it'll be the sigma variant. This shit will never end and you know it.

[Chernobog]

It's bizarre how y'all seem to think that literally anyone wants the pandemic to continue. But if you're siting that motivation somewhere, you might want to site it among the folks who reject any mitigation measures, rather than the folks who are trying to actually end the pandemic.

[IamtheBruce]

"There have been huge increases in Covid hospitalizations recently." Citation? Preferably a non-media source. No data I have seen suggest this is true.

[santamonica811]

https://www.wesh.com/article/new-covid-19-cases-florida-positivity-rate-climbs/37182942#

This article refers to the increase in Florida as a "spike" in the numbers. Not sure if "spike" = "huge"

And in the following article . . . "According to figures from the Centers for Disease Control and Prevention (CDC), the average number of new U.S. cases has risen to about 84,000 per day, almost 30,000 more than a week ago. It includes the 105,000 new cases reported on Friday.

Meanwhile, the 7-day average of vaccine doses being administered in the United States increased to about 700,000 per day, a jump of 100,000 from a week ago but still well below the 2 million daily average earlier this year.

Overall, the number of new cases in the United States was listed at 560,176 for the week that ended on Sunday, a 52 percent increase from the previous week. . . ."

Sure seems like an unexpected change in Covid's trajectory to me. YMMV.

https://www.healthline.com/health-news/here-are-the-states-where-covid-19-is-increasing-2

[IamtheBruce]

"cases" "hospitalizations"

[dwb68]

Cuomo will suck all the oxygen from the media, while the courts strike down CDC order.

I really hope Kavanaugh feels like the idiot he is for falling for the game playing.

[ReaderY]

It is interesting how Congressional Democrats would rather blame their President than attempt to pass a bill and blame Republicans for its failing.

[ReaderY]

And I agree that this is political theatre. President Biden will be able to say “I told you so” (or maybe just “I tried”) and blame the courts when they inevitably strike this one down.