Sixth Circuit

Why Do People Keep Overlooking the Sixth Circuit?

Contrary to what some claim, the Sixth Circuit was the first federal appellate court to issue a ruling on the merits of the CDC eviction moratorium.


For some reason, legal commentators seem to overlook the U.S. Court of Appeals for the Sixth Circuit when discussing legal decisions concerning the CDC eviction moratorium.

For example, in an August 6 Boston Globe op-ed defending the legality of a moratorium, Harvard law professor Laurence Tribe wrote:

the highest court to issue a binding ruling on the merits of the legal issue, the D.C. Circuit, concluded the agency had ample authority to issue the eviction ban.

This is doubly wrong. First, the D.C. Circuit did not issue a "binding ruling on the merits," as the Order itself makes clear.  Before the court was a motion to vacate the district court's stay of a decision concluding the moratorium was unlawful. In assessing this question, the D.C. Circuit panel concluded that those challenging the moratorium were unlikely to succeed on the merits, but it also made clear that it was "not resolving the ultimate merits" of the challenge. I am not sure how the court could have been any more explicit on this point.

Second, and more importantly, the Tribe op-ed ignored that another federal appellate court—the U.S. Court of Appeals for the Sixth Circuit—had issued a binding ruling on the merits (as I noted here) and concluded that the moratorium exceeded the agency's statutory authority. In Tiger Lily v. U.S. Dept of Housing and Urban Development, a unanimous panel of the Sixth Circuit concluded that the moratorium was invalid on the merits. This decision followed, and was separate from, the court's prior decision considering the challenge's likelihood of success in the context of a stay application (and also reaching the opposite conclusion from the D.C. Circuit). (For the record, there was also an Eleventh Circuit decision, but it did not focus on the merits of the challenge.)

So, unless one wants to argue that the D.C. Circuit is a "higher" court than the Sixth Circuit, "the highest court to issue a binding ruling on the merits of the legal issue" actually ruled against the CDC eviction moratorium.

Tribe is not the only one to overlook the Sixth Circuit's decision on the merits of the CDC moratorium. In a recent episode of their otherwise excellent Supreme Court podcast, Divided Arguments, Dan Epps and Will Baude noted the two preliminary decisions of the D.C. and Sixth Circuits assessing the challenges' likelihoods of success, but also overlooked the Sixth Circuit's merits holding.

Relevant state courts are not overlooking the Sixth Circuit's decision, however. Indeed, some courts are refusing to follow the new eviction moratorium because (in their view) it is unlawful under the Sixth Circuit's decision. As the AP reports:

The 6th U.S. Circuit Court of Appeals, which encompasses Tennessee, Kentucky, Michigan and Ohio, ruled in late July in a separate lawsuit that CDC lacks the authority to issue pauses on eviction. And the CDC order itself says it does not apply "to the extent its application is prohibited by federal court order."

As a result, Barbara Peck, a spokeswoman for the Tennessee state court system, said Wednesday that lawyers for courts in her state had "advised that it is not applicable in Tennessee."

Two large Ohio court systems on Thursday issued conflicting decisions regarding the new moratorium. In Franklin County, home to state capital Columbus, County Administrative Judge Ted Barrows said the moratorium wouldn't be enforced based on last month's 6th Circuit decision.

But in Cuyahoga County, home to Cleveland, the new moratorium will be enforced, according to a release from the office of Housing Court Judge Mona Scott, who noted the county has the second-highest coronavirus transmission level in Ohio.

Most public attention has focused on the D.C. litigation, in part because the D.C. case was the first to reach the Supreme Court (and the renewed D.C. challenge may be the first to One First Street again). But it's not the only game in town, and unless and until a case does reach the Supreme Court, there is no reason to privilege the decisions of D.C. courts, particularly when other courts are reaching the merits of the issue in question.

[Note: All of these decisions concern the lawfulness of the CDC eviction moratorium that expired on July 31, not the newer, slightly narrower moratorium the Biden Administration issued this month. On the merits, the two moratoria present almost identical questions, though perhaps not on questions of preliminary relief and the like.]

NEXT: How Bill Barr Kept Ken Starr Off the Supreme Court (Resulting in David Souter)

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  1. Ha well its Tribe

    1. He has spread misinformation related to Covid. Will YouTube now block him?

    2. It’s not just Tribe but all of Harvard Law School, which lurched far left into lunacy about 25 years ago.

      HLS professors state what they want the law to be — what perhaps it should be — but not what it actually IS….

      And never forget that Critical Race Theory came out of Harvard Law School in the early 1990s…

  2. Why hasn’t the new “eviction moratorium” made it to SCOTUS to be enjoined? What’s taking so long?

    1. Why hasn’t some circuit judge issue a nationwide injection yet?

    2. Seems like this coming year is a good time for SCOTUS to hear a case. But by then, the hope is the question will become moot and it will not be addressed by the court. This leaves open the possibility for other similar actions in the future. Administrative and executive usurpation of authority will again be pushed to its limits. Precedent will be established within the executive branch and future executive branch lawyers will say “well, SCOTUS never said we could not do this, therefore we can do it”. By then, the makeup of the court may change or a case may never make it to the court and the executive takes one more bite out of the Constitution. And plenty of people will be cheering on the action.

      1. I would hope since the court already pretty said its unconstitutional but they’ll allow it since its expiring soon, they wouldn’t dismiss a case as moot without a ruling. Hopefully they see this contempt for what it is, and nip it in the bid for next time

        1. The court never addressed its constitutionality. Not pretty much. Not actually. Not at all.

          The decision that went to the court was a statutory one.

          1. That is true.

            1: The President has a constitutional duty to “take care that the laws be faithfully executed”, which Biden clearly isn’t doing here
            2: When the Federal Government exceeds its enumerated powers, that’s a constitutional violation

            And I’m not really seeing any “interstate commerce” justification for an eviction moratorium. So I’m not seeing any one of the enumerated powers that would actually justify the move.

            Do you?

            1. If my preferred view of the commerce clause held sway, the federal government would lack authority to regulate evictions. But under existing precedent, it fits comfortably within the commerce clause. There are maybe two justices who would strike it down on those grounds.

              (Takings is a much stronger constitutional argument, but the problem is that the 5th amendment doesn’t forbid takings; it just requires compensation for them.)

  3. Tribe has descended to Chemerinsky levels of partisanship, untethered by principle (other than said partisanship).

    1. I think you have your timeline backwards.

  4. This seems par for the course. Anything that supports our position is certain and authoritative. Anything that opposes our position is tentative and weak, if we acknowledge that it exists at all.

  5. Ever been at a NE Acela Corridor cocktail party (back when we used to have those kind of things? Well if you are the elite like Obama then you still do apparently…) Nothing of consequences happens outside of these cities except for maybe Los Angeles, San Francisco, and Chicago. Those states that make up the 6th Circuit jurisdiction are just fly over country packed full of bumpkins who voted for Trump. I’m sure AK with chime in any minute now and validate this observation as well.

  6. Ho, now, wait a sec …

    “For example, in an August 6 …”

    Did that very same article not just call the 6th Circuit “august”, meaning “having great importance and especially of the highest social class”?

  7. Chanelling Brando voice: “Lawrence Tribe is a pimp.”

    1. It was Arthur Kirkland all along?

  8. I am not familiar with Sixth Circuit caselaw on this point, but I know that in the Third Circuit, courts within the circuit are deemed to be bound by a published panel decision unless and until it is reversed by the Supreme Court or by the Third Circuit sitting en banc. A district court is not free to rely on caselaw from another circuit as long as there is Third Circuit precedent on point. And the Third Circuit does not take kindly to its precedent being ignored.

    If sixth circuit case law is similar, then its decision is binding on every state within that circuit. Regardless what tribe says.

    1. A district court is not free to rely on caselaw from another circuit as long as there is Third Circuit precedent on point. And the Third Circuit does not take kindly to its precedent being ignored.

      This is true, but the post was talking about state courts, not district courts. State courts are not bound by circuit court interpretations of federal law.

  9. Who believes that the Boston Globe’s statement was an innocent [if ignorant] misreading of the DC Circuit decision? I think we are well past the “don’t attribute to malice what you can attribute to ignorance” stage.

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