The Volokh Conspiracy

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As Eviction Moratorium Case Returns to SCOTUS, Landlords Use Biden's Words Against Him

"Unless this Court vacates the stay—and does so promptly—Congress will know that it can legislate through pressure campaigns and sit-ins rather than bicameralism and presentment."


Earlier today, the D.C. Circuit declined to disturb the CDC's eviction moratorium. (See co-blogger Jon Adler's post). Now, the landlords have filed an emergency application to vacate the stay with the Supreme Court. Chief Justice Roberts already ordered DOJ to respond by Monday. Back in June, he gave the government seven days to respond. The Chief means business here.

This application explains how the administration bungled the extension. And it uses President Biden's words over-and-over again. Actual words, and not just tweets!

First, the brief charges the Biden Administration with "gamesmanship," which the D.C. Circuit approved:

In a remarkable display of candor, the President acknowledged that "[t]he bulk of the constitutional scholarship" concluded that this extension was "not likely to pass constitutional muster," but that "by the time it gets litigated, it will probably give some additional time while we're getting that $45 billion out to people who are, in fact, behind in the rent and don't have the money." The White House, Remarks by President Biden on Fighting the COVID-19 Pandemic (Aug. 3, 2021), (August 3 Remarks). That gamesmanship has paid off so far.

Second, the brief relies heavily on Justice Kavanaugh's balancing of the equities back in June:

Nor do the equities justify allowing unlawful agency action to continue pending appeal. As Justice Kavanaugh explained the last time the moratorium was before this Court, the equities would permit a stay only until July 31, at which point "clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium" further.

Third, the brief charges the government with pretext, under the census case:

By contrast, given the Executive Branch's recent statements and actions, the CDC's public-health justification for the moratorium can only be described as pretextual. Here, "the disconnect between the decision made and the explanation given," Department of Commerce v. New York, 139 S. Ct. 2551, 2575 (2019), is apparent because the President has been candid that the latest extension of the moratorium— and its defense in the judicial system—is designed to get as much rental assistance out the door as possible. In light of the Executive Branch's statement that its litigation efforts are designed to buy time to achieve its economic policy goals—and the fact that landlords are now subject to federal criminal penalties for exercising their property rights depending on where they do business—applicants respectfully ask this Court to issue relief as soon as possible.

Fourth, the Court asks for an immediate administrative stay. A month-long review period would give Biden all the time he wants:

Specifically, this Court should issue an immediate administrative order vacating the stay while it considers this motion. It took 26 days for this Court to resolve the previous application in June, and a similar schedule would facilitate the Executive Branch's strategy to use an "appeal[] to keep this going for a month at least." The White House, Remarks by President Biden on Strengthening American Leadership on Clean Cars and Trucks (Aug. 5, 2021), https:// (August 5 Remarks). Following briefing, this Court should issue an order vacating the stay that explains why the CDC lacks statutory authority here.

Well, they didn't get a stay from the Chief. But a three-day response time is pretty fast under the circumstances.

Fifth, the Court makes an appeal to the Court's institutional concerns:

But those weeks have come with a significant cost. Not only to the nation's landlords, who are now coming up on a year of having their properties unlawfully occupied under threat of six-figure criminal penalties. But also to the reputation of all three branches of government. Unless this Court vacates the stay—and does so promptly—Congress will know that it can legislate through pressure campaigns and sit-ins rather than bicameralism and presentment, the Executive Branch will know that it can disregard the views of a majority of Justices with impunity, and this Court will know that its carefully considered rulings will be roundly ignored. No amount of federal rental assistance justifies that cost.

I think this application gets granted, soon.