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.

NEXT: Revised, and Expanded Version of The Irrepressible Myth of Jacobson v. Massachusetts

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  1. There is no doubt that the Supremes would put a halt to the moratorium, as well they should, so can someone please tell Prof. Blackman to stop beating this dead horse. He should know that the great pleasure he will be getting from watching tens of thousands of people, many of which will be children living in poverty, being put out on the street and joining the homeless.

    1. You cannot see any alternatives to taking landlords’ property and evicting tenants, can you? You really are that blind, aren’t you?

      If proponents of stealing landlords’ property had any decency, they’d try to get a bill through Congress to PAY the rent for the poor downtrodden tenants. That they do not speaks volumes about their duplicity and hatred of the human right to property.

      Let me spell something out for you, since you are so willfully blind.

      I own myself. If someone threatens my life unless I build them a chair, that is slavery. If they threaten my life unless I give them a chair I have already made, that is theft. They are two sides to the same coin — violation of my human right to own property that is the fruit og my labor.

      You may be one of those people who agrees with protesters’ signs about “Human rights — not property rights”. Here’s a clue: property rights ARE human rights — the right to own property, ie, the fruits of our labor. Property doesn’t have rights — people have rights to property.

      1. Remember the one thing Democrats ALWAYS get wrong: Human Motivation. Once you understand that, things become much more clear.

        1. Not understanding human nature is a prerequisite for being a progressive.

          Fortunately intelligent people generally gain some understanding of human nature by the time they have been a contributing member of the workforce for a few years.

          Unfortunately there seem to be too many people who either aren’t intelligent and/or haven’t become contributing members of the workforce.

      2. Normally I would assume that the individuals who post comments on this Forum would have actually read the comment they are commenting about, but I see I have to make an exception.

        If you were to actually read what I posted you would see that I agree with the position of ending the moritorium

        “There is no doubt that the Supremes would put a halt to the moratorium, as well they should,”

        but I guess that is asking a bit much of some commentators. My point is that this is not a situation to rejoice in, and that we should exhibit sympathy and compassion for the tens, maybe hundreds of thousands of people who will suffer evictions due to a policy that was ill-founded, stupid and probably unconstitutional.

        Next time read and think before you write.

        1. They read your comment. It’s just trash honesty

        2. When you’re not showing any sympathy at all for the landlords that have had to pay their mortgage while their renters have gotten off scot-free?

          Have you ever owned anything more valuable than a car in your entire life?

        3. “He should know that the great pleasure he will be getting from watching tens of thousands of people, many of which will be children living in poverty, being put out on the street and joining the homeless.”

          This is not “ending the moratorium is the right thing to do.”

          This is “you scum are going to get your way and end the moratorium”

          For which counter-attacks are entirely appropriate

      3. Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf — Suggest you give Federalist 10 a read. Madison has some surprising things to tell you about property rights and American constitutionalism.

  2. The people who have not been paying rent have had sufficient time to make other arrangements. Jobs are plentiful and the government has been sending money their way by stimulus funds, increased SNAP benefits, child care cost reimbursement, etc.

    I know being poor is rough. I’ve been there and it wasn’t fun. My husband and I had just one of those “homeowner tool kits” for our repairs on the one old vehicle we had. It was given to us as a Christmas present and we were happy to have it. We worked on our old car every weekend so it would get us to work the next week. We had to buy more oil for it than gas. We lived in a 8 x 24 travel trailer until we could save up, barter, or negotiate for something better. There were many nights we had macaroni noodles and venison sausage mixed together with ketchup for dinner and I proudly fixed a container of leftovers for my husband to eat for lunch the following day while I told him that I’d find something at the office (I usually did even if it was a pack of crackers someone offered me).

    We were poor but we worked our butts off to move up and it took several years but we did it. Travel trailer to mobile home. Mobile home to small house. Small house to larger house on a few acres.

    When I once went to request food stamps when my husband was laid off from his job, their advice was for me to leave my husband for only then would I qualify. Otherwise, I couldn’t get the minimum of $46.00 a month. We declined.

    Don’t mock me. I’m proud of what we did. It takes discipline, but others can do it too.

      1. A guy who never suffered. ^

        1. You’re histrionic and nonsensical and most certainly not the only person ever to suffer

          1. m1shu is not wrong. As someone who also grew up poor, this hit close to home. The only people who, like you, look down on this stuff are people who had money all their lives. Or they try telling about how they also suffered because their parents had to save up every time they took the family to Disneyworld.

    1. I grew up poor in the 60’s when my mother was widowed with 3 toddlers, she never remarried and went back to school to become a teacher.

      I never realized I was poor when I was a kid, but I learned a lot from it. One of the things I learned was my mother would have died before she would skip out on her rent.

      1. Not as clumsy or random as a moratorium; an elegant principle for a more civilized age.

  3. Often, in my professional life, I have made a scurrilous argument just to extend proceedings so as to allow let my clients, penniless and desperate, survive a little while longer.

    Is this mindset foreign to you, Josh? Have you ever once in your life been on the side of the poor and desperate, instead of the well-heeled and well-connected?

    1. And how often have you instead offered up your own money to help your destitute clients, instead of offering up someone else’s money?

      1. Any time a destitute person is helped, it’s at the expense of someone else. It could be the landlord, it could be someone else to whom he owes money, it could be public fisc.

        “A poor excuse for picking a man’s pocket every twenty-fifth of December!”

        “If they would rather die, they had better do it, and decrease the surplus population.”

        1. So, what you’re saying is, “I’m OK with robbing people as long as I won’t be held personally accountable. Somebody’s got to pay for my charitable impulses, and why should it be me?”

          1. I’m sorry, you thought that rent was gonna get paid?

            1. Surely you can’t be an attorney and be unaware of the judgment-proof.

        2. Ah, so your answer is “I never personally helped any of those people financially. In fact, i used them to generate more business.”

        3. ““A poor excuse for picking a man’s pocket every twenty-fifth of December!”

          “If they would rather die, they had better do it, and decrease the surplus population.””

          The thing you’re missing about Scrooge is that he started off in favor of government assistance — “Are there no prisons? Are there no poorhouses?” “My taxes pay for prisons and poorhouses. The poor must go there.” What he learned through the spirits’ visit was *personal* generosity. Scrooge didn’t become inspired to campaign for laws to expand welfare; he became inspired to use his own money to personally benefit people. He became generous and compassionate as a person instead of leaving it to the government to take care of it. You’re still in the first part.

    2. Were you the federal government, with an obligation to represent everyone in the country, treat everyone with due process, and take care that the laws be faithfully executed?

    3. Sure, you should do what you are doing. But the courts should not allow it.

      In a criminal case suppose your client murdered the victim in broad daylight in front of 50 people and on camera and was apprehended on the spot and insists on a jury trial rather than accepting a plea bargain. If your best defense you can come up with is to suggest to the jury that “perhaps aliens from a planet in another galaxy beamed themselves into the defendant’s brain for a few seconds”, you should present that defense — but that doesn’t meant the jury should consider that is likely enough to prevent a finding of guilty.

      1. So, we don’t want due process now? I think you are confused

        1. Due process doesn’t mean no one gets convicted. It means their trial is fair. The jury deciding that your argument is idiotic and convicting based on the overwhelming evidence is excellent process.

  4. Heh. Not only is the response due Monday, it’s due by noon. So they’ve got less than 72 hours to respond. I hope they didn’t have plans this weekend.

    1. I hope they did 🙂

      1. Biden publicly stated that this action was unconstitutional. The Supremes said it was unconstitutional. He did it anyway.

        They knew this was coming. If they didn’t have the draft 90% finished, they are incompetent.

      2. I like the way you think.

  5. “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.”

    Unless Congress reform the Court, the latter will know that it can exercise the judicial power through rushed litigation and printed briefs rather than waiting for cases to work their way through the lower courts, examination ng petitions for cert., hearing oral argument, and taking time to deliberate.

    1. Pretty sure this case was already litigated once before with all the petitions/hearings/oral arguments/deliberations. For some reason, POTUS decided to ignore that ruling.

  6. “And it uses President Biden’s words over-and-over again. Actual words, and not just tweets!”

    Today I learned that Tweets are not made of actual words.

    1. I see you’ve never been exposed to Twitter ….

    2. Tweets are rushed quips, which Biden’s predecessor routinely spouted off half-baked. These are official statements that have been thoroughly reviewed and approved. A tweet gives a better view into the president’s immediate thoughts. A statement gives a better view from the official administration.

  7. Who is “The Court” in the 4th and 5th points that is asking for something?

  8. I am less impressed than Josh seems to be by the claim that the CDC’s justification was pretextual. According to Biden, his goal in asking the CDC to extend the moratorium was to prevent people from being evicted from their apartments. He hopes that the moratorium will give time for more rental assistance to be distributed, allowing people to pay their rent and thus avoid being evicted even after the moratorium expires.

    The brief claims that avoiding evictions is an “economic policy goal,“ but doesn’t provide any quotes from Biden, or indeed any evidence at all, to support that claim. The landlords may win their case, but any justice inclined to rule in favor of the landlords based on this argument should consider the possibility that employment as a professor at the South Texas College of Law might be a better match for their abilities than their current position.

    1. Yet Biden himself says that his argument is a loser, how do you reconcile that?

      I’m not sure where congress gets the authority for a nationwide eviction moratorium either, but they didn’t even try that. I thought we were a nation of laws, not executive orders.

      1. “I thought we were a nation of laws, not executive orders.”

        …..The old definition of chutzpah: killing your parents and pleading for mercy because you’re an orphan.

        The new definition of chutzpah: the legions of people who sat silently the past four years (or, worse, happily cheering it on), and are now trotting out the “nation of laws” bromide.

        I can’t even.

        Look, it’s fine to criticize things on their merits. But given that we just had four straight years of executive orders, this seems a bit … overly cute in an attempt to occupy the moral high ground.

        1. I think I need a refresher on the rules of whataboutism.

          Is it OK ? Or not OK ? Or what ?

        2. If we’re going to play the “whataboutism” game, wouldn’t we be amiss if we don’t bring up the eight years before those four years, where Democrats cheered the President using “a pen and a phone” to, among other things, implement that which he himself said should only be done by Congress?

          Maybe, rather than complain about who’s celebrating once, we should recognize once and for all that executive orders have been abused, and should be reigned in.

  9. I wish I shared Josh’s optimism that the application will be granted soon; I do not think it will even be granted. Biden and the Democrats in Congress have so intimidated the courts by their rhetoric and threats (HR 4) that the Court will neither grant this application or uphold the Mexico City ruling. Roberts and Kavanugh simply don’t have the courage. What a tragedy.

    1. Can you explain what provision of HR 4 you think is a “threat” to the courts?

      1. Haven’t read it? Here it is.

        Section 7: Preliminary Injunctive Relief, does prohibit courts from ruling in favor of states on basis that the Supreme court has clearly found constitutionally relevant:

        “(3) A jurisdiction’s inability to enforce its voting or election laws, regulations, policies, or redistricting plans, standing alone, shall not be deemed to constitute irreparable harm to the public interest or to the interests of a defendant in an action arising under the U.S. Constitution or any Federal law that prohibits discrimination on the basis of race, color, or membership in a language minority group in the voting process, for the purposes of determining whether a stay of a court’s order or an interlocutory appeal under section 1253 of title 28, United States Code, is warranted.”

        Or, as Slate put it, in their “House Democrats Just Got Serious About Reining In the Supreme Court”,

        “The House bill actually repeals the court’s own rules for deciding election-related cases”

        “These provisions do not just overturn the court’s previous decisions. They modify the court’s rules, weakening its authority to intervene in elections, and diminishing its power to side against voting rights in cases when it does step in. H.R. 4 obviously isn’t court expansion, but it does constitute a different kind of court reform: a limit on the court’s jurisdiction.”

        Slate then goes on to quote one scholar saying that these provisions are pretty safe against constitutional challenge, but I wonder if the Court itself would agree about that, when subject to such a direct attack on its own internal deliberations.

    2. People actually believe this kind of horsesh*t?

  10. I wish I shared Josh’s optimism that the application will be granted soon; I do not think it will even be granted. Biden and the Democrats have so intimidated the courts by their rhetoric and threats (HR 4) that the court will neither grant this application nor uphold the Mexico City ruling from the 5th Circuit. Roberts and Kavanaugh simply don’t have the courage. What a tragedy.

  11. I agree with those who think that a grant of review is a slam-dunk. The Roberts Court does no more than it senses it is required to do. The government has been successful in keeping an admittedly unconstitutional order in place four times so far. It would be a victory for the law and a massive clipping of the wings of federal mission creep if the landlords were to get relief, but I am not so sure. Most everything except church attendance has been go-along, get along so far. But we shall see.

  12. Trump has proved words a president says don’t matter

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