Seven Levels of Fallout from the Eviction Moratorium Case

This shadow docket ruling, combined with Biden v. DHS, may be the most significant administrative law rulings of the Term.

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On Thursday evening, the Court vacated the stay in Alabama Association of Realtors v. HHS. The Court released an eight-page per curiam majority opinion, and an eight page dissent by Justice Breyer. There are seven levels of fallout.

First, the Biden Administration suffered two significant losses in the span of 48 hours. The Roberts Court does not seem to be going easy on the new President. So far, Biden has received a remarkably rough reception. And these rulings do not bode well for the many other cases trickling up the lower courts. The Court did not cite Biden's statements, but alluded to the political pressure with a reference to the "three day" gap.

Second, Larry Tribe and the other members of the LawProf Kitchen Cabinet did not serve the President well. The Court found that the new policy was virtually "indistinguishable from the old." OLC and the SG no doubt predicted this devastating defeat. But they were marginalized. The relationships between DOJ and the White House will need to be mended.

Third, this shadow docket entry included a well-reasoned majority opinion. The Court spelled out with some clarity why the policy was almost certainly unlawful. The majority opinion favorably cited UARG and Brown & Williamson to invoke the "major question" doctrine.

Even if the text were ambiguous, the sheer scope of the CDC's claimed authority under §361(a) would counsel against the Government's interpretation. We expect Congress to speak clearly when authorizing an agency to exercise powers of "vast 'economic and political significance.'" Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160 (2000)). That is exactly the kind of power that the CDC claims here. At least 80% of the country, including between 6 and 17 million tenants at risk of eviction, falls within the moratorium. 

Additionally, the Court explained that Congress needs to use a clear statement to intrude onto a longstanding attribute of state law: landlord-tenant relationships. I raised this argument in an amicus brief I filed in Terkel v. CDC.

Fourth, the Court favorably cited Loretto, and endorsed the right to exclude.

And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership—the right to exclude. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 435 (1982).

This last citation, which reinforces Cedar Point, provides a strong basis for the inevitable takings claims. But the landlords may not get much. Later, the Court suggested that the potential measure of just compensation was the amount of money Congress appropriated.

Congress has provided nearly $50 billion in emergency rental assistance—a reasonable proxy of the moratorium's economic impact.

In other words, if the landlords get their money from Congress, they would not be owed anything extra for just compensation. They would be made whole. This sort of ruling would resemble the remedial punt from Horne II, in which the Court pegged the amount of compensation to the fine imposed by USDA.

The Government has already calculated the amount of just compensation in this case, when it fined the Hornes the fair market value of the raisins: $483,843.53. The Government cannot now disavow that valuation and does not suggest that the marketing order affords the Hornes compensation in that amount.

Fifth, this case doesn't immediately end the eviction moratorium. District Courts throughout the country will have to enter final judgments barring the enforcement of the eviction moratorium. They should do so promptly, though some may drag their feet. A few may even resist. (I said it.)  As best as I can tell, the only case that will remain live is the constitutional challenge to the moratorium, Terkel v. CDC. The case is set for argument in October before the Fifth Circuit.

Sixth, the Biden Administration's gamble backfired, big league. Indeed, the Court provide a very narrow construction of 42 U.S.C. § 264, an essential public health law. In future disasters unknown, the federal government will have its hands tied by this decision. The Court read the second sentence, which refers to "measures like fumigation and pest extermination," as a limitation on the first sentence. I first proposed this reading on September 1, 2020. I think my approach was the best reading of the statute. But many lower courts disagreed. Now, the Supreme Court has settled the matter. And the Court identified hard limits on the scope of the CDC's authority.  Here is the pivotal passage:

The Government contends that the first sentence of §361(a) gives the CDC broad authority to take whatever measures it deems necessary to control the spread of COVID–19, including issuing the moratorium. But the second sentence informs the grant of authority by illustrating the kinds of measures that could be necessary: inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles. These measures directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself. The CDC's moratorium, on the other hand, relates to interstate infection far more indirectly: If evictions occur, some subset of tenants might move from one State to another, and some subset of that group might do so while infected with COVID–19. See 86 Fed. Reg. 43248–43249. This downstream connection between eviction and the interstate spread of disease is markedly different from the direct targeting of disease that characterizes the measures identified in the statute. Reading both sentences together, rather than the first in isolation, it is a stretch to maintain that §361(a) gives the CDC the authority to impose this eviction moratorium. 

Now, other exercises of authority based on this statute are in doubt. The government needs to show a fairly direct link between the regulation and "interstate infection." The key phrase is "direct targeting of disease." I suspect many OLC and CDC internal opinions need to be rewritten. The airplane mask mandate is probably okay. But an interstate travel vaccine requirement may go too far under the major question doctrine.

Seventh, the Court stressed that the government's "unprecedented" argument was especially weak in light of the risk of high fines, and incarceration.

This claim of expansive authority under §361(a) is unprecedented. Since that provision's enactment in 1944, no regulation premised on it has even begun to approach the size or scope of the eviction moratorium. And it is further amplified by the CDC's decision to impose criminal penalties of up to a $250,000 fine and one year in jail on those who violate the moratorium. Section 361(a) is a wafer-thin reed on which to rest such sweeping power. 

I recently wrote about the $5 fine at issue in Jacobson. The Chief seems especially troubled by punitive measures. The amount of the penalty in NFIB was central to the saving construction. If any jurisdiction imposes some sort of vaccine mandate with a high penalty, the Court may find it unlawful–in light of Jacobson's nominal penalty. I may be reading too much here, but this passage really stuck out.

***

My guess is that the Chief wrote the per curiam opinion, perhaps with Justice Kavanaugh's help. The remedy resembles Horne II. Roberts relied on the major question doctrine in King v. Burwell. And the citation to Loretto seems to echo Roberts's Cedar Point majority. If Gorsuch or Alito wrote the opinion, there would be allegations of bad faith against the Biden Administration. This opinion is fairly sterile. Also, the citation to Youngstown at the end is a very Roberts move.

But our system does not permit agencies to act unlawfully even in pursuit of desirable ends. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 582, 585–586 (1952) (concluding that even the Government's belief that its action "was necessary to avert a national catastrophe" could not overcome a lack of congressional authorization). It is up to Congress, not the CDC, to decide whether the public interest merits further action here. 

There is a direct link from Roberts to Rehnquist to Jackson.

This shadow docket ruling, combined with Biden v. DHS, may be the most significant administrative law rulings of the Term. I did not expect so much fireworks before First Monday.

NEXT: Supreme Court Rules Against the Revised CDC Eviction Moratorium

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  1. Mr Biden has made a lot of bad bets in August.

    1. Such as?

      The eviction issue seems a plus politically. And every conservative “win” at the Court is another step toward Court enlargement . . . another win.

      In Afghanistan, he is cleaning up a fools’ errand created and aggravated by his three immediate predecessors. It is messy, but he is the first president in 20 years to be moving in a proper direction with respect to our Middle East misadventures. Let’s hope he will be smart and confident enough to ditch Saudi Arabia and Israel simultaneously, removing a couple of anchors from our national ankles, too.

      1. he is the first president in 20 years to be moving in a proper direction with respect to our Middle East misadventures

        Talk about damning with faint praise!

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      2. “The eviction issue seems a plus politically.”

        I guess that must be why Pelosi told Biden to get better lawyers instead of trying to get a constitutional eviction moratorium with just compensation for landlords through Congress.

        Kind of a shitty thing to do if you believe that ending the moratorium hurts people.

        As is chalking up the end of the moratorium as a win, if you truly believe that people will be harmed by it. But I doubt many Dems truly believe that.

  2. Quibble with point 6. I don’t see that as tying the government’s hands. “ These measures directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease ” — seems right to me.

    Why should the government (CDC) have unlimited powers to pursue policies only “indirectly” connected to disease control? Is there a real risk to good policy making in this decision?

    1. Robert, I suppose the saving counter-argument would be that the government may have all kinds of powers, but the administration may not use them until congress decrees their use necessary. And that did not happen here.

      1. One can be against the massive ACA but at least Congress opened their mouth directly on it. They did not do that here. Nor, for that matter, for treating ISPs as common carriers for net neutrality, relying on another ancient law not designed for it.

        Those brave, brave souls. Honor their skill at not going on the record.

      2. I didn’t read the whole decision, but I think you are right. It’s premised on Congress having delegated only limited powers to the CDC, in the language Josh quoted.

        Whether Congress could make the CDC director “Czar of all Americans” with unlimited power wasn’t the question presented, but I suspect the answer to that question would also be “no”.

        1. At least until a significant fraction of the Justices have been replaced, or Court packing has taken place.

    2. Straw grasping comrade

  3. Good job outlining the broader impacts of this decision. A tactical retreat certainly would have served the office better.

  4. Additionally, the Court explained that Congress needs to use a clear statement to intrude onto a longstanding attribute of state law: landlord-tenant relationships.

    Substitute, “damages for libel,” for “landlord-tenant relationships,” and what are the implications for Section 230? Not that I see any sign that this court is trying to systematize its judicial reasoning, of course. This looks like a court so splintered ideologically that it will end up with quite a few decisions, “good for this case only.”

    1. You’ve got 230 on the brain.

      There are no implications to section 230 in this decision.

      And 6-3 is not exactly splintered. 3-3-3 with multiple dissents and partial concurrences.

      1. Kazinski, because prior to Section 230 libel law was not principally (actually, almost exclusively) a state concern? News to me.

        1. So what? Section 230 and its history make plain that defamation was the principal issue that Congress had in mind. In fact, the chief case it was reacting to was a defamation case, Stratton Oakmont, Inc. v. Prodigy Services Co., (N.Y. Sup. Ct. 1995).

          There is nothing unclear about what Congress was doing there.

          1. Agreed. Not to mention it has an express preemption provision.

            (e)(3) second sentence.

            “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

        2. Kazinski, because prior to Section 230 libel law was not principally (actually, almost exclusively) a state concern?

          The accuracy of this statement depends on how much work you want “particularly” to do, but in any event, that’s not the reason why this decision has no implications for section 230.

          News to me.

          Yes, your Dr. Ed-like pride in your complete ignorance of the topics you feel strongest about is notable, but you are allowed to either educate yourself or stop opining.

        3. Kazinski, because prior to Section 230 libel law was not principally (actually, almost exclusively) a state concern? News to me.

          It is not in fact news to you, because you have repeatedly been told (by me, if nobody else has had the patience to do so) about New York Times v. Sullivan and its progeny.

          1. Nieporent, prior to Section 230, under which federal libel statutes did plaintiffs bring libel cases? How many were there? How many state law libel cases were there? See the point?

            NYT v. Sullivan was a press freedom case, much more than it was a libel case.

            As you and others have pointed out, Section 230 explicitly (and, yes, clearly!) all-but-abolished an entire class of state laws regarding libel, at least with regard to their application to online content. There is no point in pretending that did not happen, or that NYT v. Sullivan was precedent for it.

            Loki and others above seem convinced that the admirable clarity of Section 230 makes its abrupt federal intrusion into customary state law unambiguously justifiable. You guys are the lawyers. Maybe so.

            I continue to find that surprising, and contrary to principles of federalism which I see bruited so frequently. It remains peculiar that in a single congressional enactment, the practice of libel law was largely transformed from a state law practice to a federal law practice, with nobody seemingly interested enough to remark on it. To me at the time, it looked like a manifestation of whatever it was that made the internet not only a technical advance and a social disrupter, but also a fad. People wanted to be seen to be on board, and raising a principled federalism objection to a federal law widely perceived as pro-internet was no way to get on board. I think that is still going on, and still clouding judgment with regard to what Section 230 has done.

            1. What fraction of libel cases do you think are filed in federal court after “in a single congressional enactment, the practice of libel law was largely transformed from a state law practice to a federal law practice”?

              It’s a small fraction, because that’s not what Section 230 did.

    2. Additionally, the Court explained that Congress needs to use a clear statement to intrude onto a longstanding attribute of state law: landlord-tenant relationships.

      Substitute, “damages for libel,” for “landlord-tenant relationships,” and what are the implications for Section 230?

      None whatsoever. Section 230 is abundantly clear in its application to defamation law. (Even those who misuse the “good faith” language and claim it might mean something different are talking about a different provision of the law.)

  5. “Congress has provided nearly $50 billion in emergency rental assistance—a reasonable proxy of the moratorium’s economic impact.”

    Why would a proxy be needed? The damage is, at a minimum, the unpaid rent. Just because Congress provided $50B doesn’t mean $50B actually covers the unpaid rent.

    Require Congress to pay all the back rent, every cent of it, with interest. They then then go after the tenants themselves for it.

    1. Yeah I was struggling with the logic of :

      The Government has already calculated the amount of just compensation in this case, when it fined the Hornes the fair market value of the raisins: $483,843.53. The Government cannot now disavow that valuation and does not suggest that the marketing order affords the Hornes compensation in that amount.

      The fact that the Government sets a value of $483,843.33 on some raisins, doesn’t make the value of those raisins $483,843.33. Now in a raisiny context where the Government, not knowing it’s later going to get hit with a takings claim, is imposing a fine based on its idea of market value; we might infer that the Government is not going to understate the MV. But it might well overstate it. Or it might just bollix it up cos it’s clueless.

      The court’s reasoning looks a bit more like a sort of estoppel – you claimed $483,843.33 was the MV when it was in your interests to go big, now you’re stuck with it.

      But that certainly doesn’t imply that whatever value the Government slaps on the value of something for some purpose is the actual market value.

    2. $50 billion was in the paragraph explaining that the court expects “Congress to speak clearly when authorizing an agency to exercise powers of “vast ‘economic and political significance.’” $50 billion impact is vast economic impact. I did not read that to be an actual estimate of damages in a takings case.

      Damages in a takings case may not be limited to actual rent, for example if the renters damaged the property.

      Ultimately the eviction moratorium is going to backfire and hurt the people (renters) it was designed to help. landlords will be made whole, at taxpayer expense, but renters will carry the stain of not paying rent for a long time. Landlords wont want to rent to them.

      1. Create a problem the victims will blame on somebody else, and then save the victims from the problem. It’s a time tested way of buying votes. The renters will presumably be very grateful when Congress rescues them from their own failure to pay the rent, and especially from their perjured affidavits.

        It’s not unlike the scam they’re pulling with the child tax credit: Advancing it to taxpayers unless you jump through flaming hoops to opt out. The intended goal is that people spend that money, don’t adjust their withholding, and next summer are shocked by how much taxes they owe.

        Then Congress will swoop in with a gift of money, just before the midterms, saving them from the problem Congress had created.

      2. DWB comment – “Damages in a takings case may not be limited to actual rent, for example if the renters damaged the property.”

        DWB makes a good point – It is well known in the residential rental market community that slow pay and non paying tenants cause the vast majority of property damage to rental properties, and much higher rates of maintenance.

        1. No kidding: When my tenants on my house in Michigan skipped out on their last rent payment, I found so much damage that I spent about 6 months rent just repairing the place.

          1. And of course on top of the repair costs, you’re out another 6 months of rent while the property is off the market

      3. Lamy landlords will likely not be able to be very discriminating with their next tenants. The coming wave of evictions of evictions is going to create a glut of vacant units and a glut of (bad) tenants wanting them. Cash-starved landlords will have to get someone in quickly to get the income flowing again.

        I do imagine a lot of people will be getting out of the business and putting properties up for sale. It will be a good time to buy, assuming you haven’t killed your credit by not paying rent lol. Expect a lot of units to end up with corporate landlords

        1. Kinda the whole idea. Follow the money, right? More real assets at fire sale prices for our overlords.

  6. The court did not need to mention bad faith because everything about the short briefing schedule and terse opinion demonstrates the lack of patience with the governments bad faith.

    The court wrote “it is difficult to imagine them losing.” I read that as a slap to the lower court that gave the CDC way too much rope.

    And, the court did not just grant the stay, they grounded the CDC probably for life.

  7. “The CDC’s moratorium, on the other hand, relates to interstate infection far more indirectly: If evictions occur, some subset of tenants might move from one State to another, and some subset of that group might do so while infected with COVID–19. See 86 Fed. Reg. 43248–43249. This downstream connection between eviction and the interstate spread of disease is markedly different from the direct targeting of disease that characterizes the measures identified in the statute. Reading both sentences together, rather than the first in isolation, it is a stretch to maintain that §361(a) gives the CDC the authority to impose this eviction moratorium. ”

    So will the Court be reconsidering their *Raich* travesty and the *Wickard* precedent in light of their new found disdain for creating several step removed hypotheticals about how something relates to an underlying authority?

    Somehow I doubt it. Yet we’re supposed to believe they’re engaged in principled, rather than motivated, reasoning.

    1. And yes I forgot where I was posting when I tried to italicize with asterisks, I just woke up cut me some slack.

    2. One can only pray that Wickard, the worst SCOTUS decision in history, will be overturned. This case opened Pandora’s box and broke the balance devised by the Framers and formalized by the 10th Amendment.

      1. In the fable, Pandora slammed the lid back down again, just in time to keep Hope from escaping the box. So abandon all of it, the Court is not going to revisit that abomination.

      2. Wickard, the worst SCOTUS decision in history,

        Ever heard of Dred Scott? Or Korematsu? Or Plessy? Or Buck v. Bell?

        1. Well maybe the worst still operative supreme court decision.

          Dred Scott is probably the worst, besides just being abhorrent, definitely a factor is causing a very bloody war.

        2. The last 60 years post civil rights has shown that Plessy and Dred Scott were both correctly decided.

  8. Professor Blackman, in his rush to exorciate the Biden administration ignores reality.

    Biden and his people never expected the Court do do anything other than what they did. Initially they did not want to extend the moratorium. But they were under tremendous pressure from the hard left to extend it even though the hard left and everyone else knew it could not stand.

    So Biden made a weak and feeble and quite frankly insincere effort to extend the moratorium only for the purpose of putting a fig leaf on reality. And it worked out as they wanted it to, the Court is to blame for the evictions, not the Biden administration. Contrary to what Prof. Blackman argues, Biden and his team won this one.

    1. At last some common sense.

      In the same way, making sure the Afghanistan withdrawal is a total clustermultiplication is a yuuuge win for Biden in the short term, and America in the long term. It totally destroys the argument for any kind of foreign military adventurism in future, by deeply implanting memories of the fiasco in the minds of all registered voters. Think of it as like a Covid booster shot. The American public, save for a few aging hippies, has forgotten about Vietnam. A little Afghan top up jab does the trick.

      Think what a disaster it would have been if the thing had proceeded in a proper military fashion – conducted over the winter when the Taliban are home in their cold mountainous villages, civilians out first, equipment extracted or destroyed if unextractable, then military personnel extracted, with the last thing abandoned being Bagram airfield.

      That sort of orderly withdrawal would simply have encouraged more future BushCheneyRumsfeldHitlerism in future.

      Thank God for Joe and his deep understanding of fig leaves.

      1. No, that’s just stupid. I appreciate that you wrote in the irony, though.

        Afghanistan was always going to end poorly. Do you want to blame Bush? Sure, he should’ve left after initial success. Do you want to blame Obama? Sure. He stayed in there. Do you want to blame Trump? Sure. He had the right idea (to get out) and the wrong execution (giving a date certain and providing a framework for the Taliban to re-assert control).

        Long-term, provided we don’t do something stupid (like stay or go back in because of events) this is a win for America. But short-term? This is a terrible disaster for the Biden Administration, and should involve serious soul-searching as to how this happened.

        Leaving was the right thing to do. The buck stops with Biden. So the implementation? Yeah, that’s on him.

        1. Yes, ideally we should have just gone in, worked them over, told them not to even think of doing that again, and left. Not moved in and stayed there, just left them in mortal terror of messing with us again.

          But this was nearly the worst possible way to have left, makes you wonder if it was intentionally screwed up.

          1. “But this was nearly the worst possible way to have left, makes you wonder if it was intentionally screwed up.”

            No. People have to get out of this conspiratorial mindset. Never attribute to malice (or conspiracy) what is easily, and verifiably, attributed to stupidity, incompetence, and institutional motives. I’ll break it down like this:

            1. The Afghanistan government was never going to succeed. Nor was the Army. We were just pouring money into an endless pit of the open pockets of kleoptocratic Afghanis and well-connected US Contractors.

            2. Because of that, there was no real “nation building” that was going to work.

            3. It’s not all terrible- some limited good was done. Advances in civil society, especially w/r/t women’s rights (for example) did occur, especially in urban areas. Just like happened under the prior, Soviet-backed regime.

            4. Once the Trump plan was put into place, it was open season for the Taliban to make their advances. That was the beginning of the end.

            5. However, despite the fact that there were serious people who communicated the problems on the ground, almost no one fully believed that the government and army could collapse as quickly as it did. In retrospect, it seems painfully obvious, but not at the time …

            6. So the estimates for the fall of the government and Kabul went from “years,” to “months,” to “weeks,” to OMG IT’S ALREADY HAPPENED. Like Monty Python and the Meaning of Life, when you see them far away, far away, far away, far away, and then THEY ARE THERE.

            7. But this all goes back to the “Biden Administration” for not seeing that this was going to happen, and, worse, once the reports started coming in about the Taliban’s advance, not immediately changing strategies in order to deal with the actual reality, and not the BS that kept getting fed to them.

            Nothing in this is deliberate; just American hubris and overextension and a failure to learn from history. Which I certainly hope will be examined in depth.

            1. Loki13, my thoughts are that when the mission changed in Afghanistan in late 2002, it was time to leave. To me, that is the strategic mistake: when the mission morphed from killing terrorists and their enablers who attacked us on 9/11 to Pottery Barn repair (aka ‘nation building’). Everything after that was a waste. We should have left a long, long time ago. That is on POTUS Bush, and to a lesser degree a compliant Congress who went along with it (and stayed on that path for nearly two decades).

              Nothing in this is deliberate; just American hubris and overextension and a failure to learn from history. Which I certainly hope will be examined in depth.

              Agree 100%. Our Afghanistan experience can and must be examined critically. We owe this to our children and grandchildren. After all, they won’t be sending you or I to the front lines to fight the next war. They will send our children and grandchildren. That is why we have to critically re-examine our actions in Afghanistan.

              1. Commenter_XY,

                I agree that the original strategic mistake was not getting out at the beginning, but I also think that it’s a little too easy to lay it just at the feet of Bush. Yes, that’s when we should have left.

                But we didn’t.

                So every administration since then has had a chance to rectify that mistake. They haven’t. Just more blood and treasure. So there’s plenty of blame after Bush, too.

                And I think there is value (IMO especially given the bizarre levels of blame shifting we’ve seen in the last few years) to acknowledge that there is responsibility with the person in the White House. Sure, Biden inherited the situation. And yes, I give him credit (when and if it’s done) for finally getting us fully out.

                But the implementation? Wow. Just awful. And the buck stops with him on that. I don’t think it’s helpful to sugarcoat it either; it was always going to end badly, but it’s on Biden that it’s ending … this badly.

                1. My thought on that: Let’s get this over with.

                  Then start that critical re-examination we need. I am hoping that any re-examination will take heed of the Weinberger test articulated in his “The Uses of Military Power” speech in 1984.

                  1. Yeah, I think we are in agreement.

            2. I’m never going to get out of a conspiratorial mindset, because I’ve followed politics too long to be gulled into that. Politics is equal parts incompetence AND malice.

              Or, rather, differing aims can pass for a fair imitation of malice.

              1. “I’m never going to get out of a conspiratorial mindset …”

                I wouldn’t expect anything else.

                I’ll just say the same thing I always say when I see this. Nothing I say, or anyone says, will ever change your mind. But at some point, you might want to reflect back on the sheer number of … incorrect prediction, inconsistencies, and outright weird things you’ve espoused. Not political opinions- those are like … shoulders, we all have them. 🙂

                But actual, falsifiable things. And maybe one day, when you take that inventory, you can decide for yourself if believing in these conspiracies makes you smarter than the rest of us, or just another mark.

              2. ” I’m never going to get out of a conspiratorial mindset, ”

                A flicker of self-awareness from Birther Brett Bellmore.

            3. No. People have to get out of this conspiratorial mindset.

              You’re talking to Brett. Any time anything says or does anything that might undermine one of his notions, he assumes that they’re just acting in bad faith.

              1. It’s hard to tell the difference between someone who planned to fail and someone who refuses to discuss potential failure modes, declaring instead “I want to talk about happy things, man”.

    2. Correct. Flouting the Constitution is politically profitable now. Just another example of why the federal government is dysfunctional and should be dissolved and restructured.

    3. “Biden and his team won this one.”

      That’s what they likely think but its stunted “win the news cycle” short term thinking.

      The more likely result is 1) they burned credibility with the courts that will in the long term bite them and 2) they showed the left crazies in Congress/media/Party that they are weak and totally roll-able.

      1. Bob from Ohio…how will the lost credibility with the Courts bite them at all? What things would you expect to see from a Court that would constitute a ‘bite’ back? I am not being facetious.

        1. The federal government gets the benefit of many favors/preferences from the court. Doesn’t mean it wins all the time but it helps.

          Those are put in jeopardy if they don’t trust you.

        2. It depends, for instance Kavenaugh definitely cut them a break in not revoking the stay a few weeks ago, and giving them a deadline.

          Next time possibly a question comes up to keep a stay in place, assuming a good faith effort to conform to the law, they won’t assume that any effort will be made to bring to meet the courts expectations to faithfully execute the law.

          Next time Pelosi tells Biden, find better lawyers, hopefully he won’t go to the same political hacks.

          1. Even better: Biden, Pelosi, and Schumer put new justices on the Court, neutering the Court’s conservative political hacks.

  9. Captain Obvious decision. Unless property confiscation is OK indefinitely because of a pandemic.

    This year and a half is life on satire. The Babylon Bee must be struggling to stay more ridiculous than reality.

    One win for reality for now.

      1. That site reminds us that the clingerverse stumbles and fails each time it attempts to emulate the mainstream’s comedy, music, movies, etc. notthebee.com gets in line with Redeye, The Half Hour News Hour, Jeff Foxworthy, the Left Behind series, Sam Hyde, Gutfeld!, Adam Carolla, and every Palin-Duggar-Robertson production.

        The only worthwhile conservative comedian was Stephen Colbert, which tells you everything.

  10. “The relationships between DOJ and the White House will need to be mended.”

    Nothing so frayed that an enlarged Court could not mend it.

    Even if a hard-hearted Supreme Court decision during a pandemic marked by conservatives’ virus-flouting, fairy-tale-flattering, lethally reckless, belligerently ignorant behavior were something the American mainstream should fear.

  11. So this post exemplifies everything that makes JB, JB.

    First, incessant self-referral to his prior posts (thank goodness he didn’t have a ‘Blue June’ reference … oh, that was yesterday? *sigh* Not going to make fetch happen).

    Second, bizarre and unsupported speculation about personal motives. I am reasonably certain that there might some “I told you so’s” at the OLC, but no fences that need to be mended. Seriously? Breaking news- client decides to take other path! Practicing attorneys go, “Yep. Sounds like any other day.”

    Third, and finally, going outside his area of expertise and making sweeping pronouncement. Really, two shadow docket cases are going to be the most important cases in Administrative Law this term? Because … JB is an expert in Administrative Law, unlike that idiot, Adler? Or because he’s an expert in the shadow docket, unlike the person who pretty much invented the concept, Baude?

    Look, I get the desire to pontificate about things- we all do in the comments! But notice what the other VC’ers do; they are either speaking directly about their areas of expertise or about things they are directly informed on.

    All of these posts, all this personal “back and forth” on the Supreme Court as if it was some type of US Weekly (is that still around) is made that much worse because, unlike some of his co-conspirators, JB never even clerked there.

    You can either be an pundit opining on everything, with little credibility since you are giving opinions away all the time, or you can be considered knowledgeable about the things you speak about, all the time. It’s the difference between, say, reading most of the things written by EV, Kerr, Baude, and Adler, as opposed to reading one of the 39 daily JB posts.

    And it doesn’t have to be this way! To his credit, JB does have the ability to quickly read, digest, and discuss things. Here, once you remove the absolutely stupid things he says, the self-reference (look, I submitted an amicus!), and the unnecessary flourishes and speculation, he provides some good information and reasoned (and reasonable) speculation: points 3, 4, and (to a lesser extent, really) 5 are pretty good, and would have warranted full examination.

    Heck, imagine if he had just done a deep dive into his reasoning on point 4- if he just provided some serious analysis on his thoughts on the taking. I would have enjoyed that.

    TLDR; more law substance, less bizarre stuff. Please.

    1. Don’t change, Prof. Blackman. Please. If anything, maybe turn it up a half-notch.

  12. Here a lesson for Progressives, Cori Bush’s campout the Capital steps is not as interesting to SCOTUS as it was to the Tweeter-universe. Progressives wanted President Biden to challenge the Court and see it would really strike down the eviction moratorium, well it did. In the future it is best to take the hint from the court. This all took less than month and so the delay likely helped no-one.

    1. “Here a lesson for Progressives,”

      The lesson they actually took is that Biden is weak and will not stand up to them. So they will re-double such pressure.

  13. Now I’m curious how it goes from here. When the original moratorium ran out the Senior Judge of Allegheny County in Pennsylvania wanted their Courts to slow down the processing of eviction rulings. Her supposed reasoning was to buy time for people to put in for the Federal funding. So will activist Judges slow down or stop the processing of evictions because of this ruling?

    1. Honest answer- it really depends on the jurisdiction.

      What you call “activist judges,” others might call, “state court judges who may be attentive to the local conditions.”

      To give you two examples of jurisdictions I practiced in, both within the same state, both applying the same law:

      In jx A, the judges treated evictions like a rocket docket. It didn’t matter what the defenses were. It didn’t matter what the claims were. If a landlord wanted you out, you were out.

      In jx B, the judges slow-walked most evictions. Scheduling was hard, and they would bend over backward to let the (usually pro se) tenants have every single possible chance to avoid eviction.

      A was in a college town with a lot of transient people and a lot of landlords.

      B was in a town with insanely high rents and no real ability to get a new place, which meant that a quick eviction would likely force someone on the streets or out of the area.

      Same statutory law. Eventually the same results. Very different approaches.

      1. “it really depends on the jurisdiction”

        The answer to every legal question is: It depends.

  14. I have a couple of quibbles about one sentence in the majority and a question about the dissent. I am not expressing a view on which outcome is correct on balance.

    The per curiam says in describing the extent of the CDC’s interest: “If evictions occur, some subset of tenants might move from one State to another, an some subset of that group might do so while infected with COVID–19.” Why is the interest limited to the small subset of tenants who will move interstate? Even if tenants move down the block, they may spread the disease to others, and that increase in infection cannot be contained in the locality, as we have unfortunately seen. The statute doesn’t seem to have that interstate-movement limitation. Surely, for example, the government need not show that a building is likely to move across state boundaries before it engages in fumigation or pest control.

    For that matter, why is the interest limited to tenants who move who already have COVID? If they are thrown into more crowded accommodations, or even accommodations of the same density but in different bubble, they may be more likely to catch COVID post-move and THEN pass it on. We maintain small bubbles even when we don’t know that we already have COVID in part, yes, to protect ourselves, but in part also to protect the broader community.

    The question about the dissent (and it is a genuine question to which I do not know the answer rather than a rhetorical question or gotcha): The dissent quotes the moratorium as providing that “landlords remain free to “challeng[e]” in court “the truthfulness of a tenant’s . . . declaration” that he or she qualifies for the order’s protection.” Does that provision have any practical effect? How is the challenge to truthfulness raised, for example? The moratorium says that it is raised “as permitted under state or local law.” Are the states even hearing or scheduling eviction cases that are at least facially qualified for the moratorium? If not, what is the procedure under state or local law to challenge the declaration? I wonder, in short, whether existing state procedures were developed to interact in this manner with the unforeseen (by some) moratorium and set forth a pathway for the truthfulness of declarations to be litigated? (Also, is “as permitted under state or local law” somehow a limitation that precludes the landlord from challenging the truthfulness of the tenant’s declaration in a federal criminal proceeding against the landlord? I wouldn’t think so, but the absence of an easily added clause to that effect gives me pause.)

    1. “Why is the interest limited to the small subset of tenants who will move interstate? ”

      Because:
      1: The Federal Government does not have a generalized police power.
      Person A in State Z passing it to Person B in State Y is an interstate, and therefore Federal, problem.

      Two people in the same State getting each other sick is not.

      2: If you would have gotten someone down the block sick, you might just as easily have gotten someone in your current apartment block sick. So there’s no net increase it “getting sickness”

      1. So Madison got it wrong when he signed that law providing for federal vaccination of people without regard to whether they were moving state to state or even lived near another state? The more people who get the virus in any one state, the more danger there is to people in other states.

        1. You’re going to have to provide some links if you want a discussion of those issues

  15. Congress cannot set just compensation – that is a judicial function.

    Monongahela Nav. Co. v. U S, 148 U.S. 312, 327, 13 S. Ct. 622, 626, 37 L. Ed. 463 (1893)

    “By this legislation congress seems to have assumed the right to determine what shall be the measure of compensation. But this is a judicial, and not a legislative, question. The legislature may determine what private property is needed for public purposes; that is a question of a political and legislative character. But when the taking has been ordered, then the question of compensation is judicial. It does not rest with the public, taking the property, through congress or the legislature, its representative, to say what compensation shall be paid, or even what shall be the rule of compensation. The constitution has declared that just compensation shall be paid, and the ascertainment of that is a judicial inquiry.”

  16. “OLC and the SG no doubt predicted this devastating defeat. But they were marginalized. The relationships between DOJ and the White House will need to be mended.”

    It can’t be, other than by OLC and the SG violating all professional ethics and simply telling the Biden* White House whatever they want to hear.

  17. >>>
    Congress has provided nearly $50 billion in emergency rental assistance—a reasonable proxy of the moratorium’s economic impact.

    In other words, if the landlords get their money from Congress, they would not be owed anything extra for just compensation. They would be made whole.
    <<<

    You're reading that incorrectly. They're saying that a $50 billion appropriation means this is a problem at least that big. Nothing in what they wrote puts a cap on it

  18. Concur that it’s the CJ.

    Interesting use of “read” for “reading”: “Indeed, the Government’s read of §361(a) would give the CDC a breathtaking amount of authority.” (Perhaps they meant “rede.”)

    And the powers under the federal emergency statute appear to have been limited to purchasing authority for a can of Raid and the quarantine of plague fleas after a confirmed PCR test. This is fine.

    And it’s not a taking. They’ve voluntarily conveyed their interest in the property, so the right to ejection/entry doesn’t accrue until a court determines that the serf paying 5k/mo. for a studio in the East Village is in default. If denial of the (1) judicial determination necessary to (2) the remedy which would allow (3) entry onto the property in order to (4) exclude people by throwing small bundles of sticks at them was a taking, court clog delaying any interst in property would be a basis for recovery.

    Mr. D.

  19. Am I alone in thinking that this decision, which focuses on the extent of authority alleged to be held by a governmental office, read together with Horne II cuts down the authority of precedents such as Wckard v. Filburn and Raich v Gonzales.
    In Horne II, the Court wrote: “The third question presented asks “Whether a governmental mandate to relinquish specific, identifiable property as a ‘condition’ on permission to engage in commerce effects a per se taking.” The answer, at least in this case, is yes.”
    Clearly this statement contradicts the entire basis for Wickard and for Raich. (I don’t think that the per se illegality under Federal law of growing pot affects this.) In Wickard, growing wheat was proscribed. Under Horne that was a per se taking. Wickard is a ‘required dependency’ for Raich.
    Here the right to to re-occupy on rental default was ‘taken’. And the authority to declare that taking was found to be unconstitutional. Could be that there are constitutional authority questions underlying any number of regulations. (ie. how *did* marijuana end up as a prescribed ‘drug’. Were there randomized controlled trials and peer reviewed papers discussing the similarities between marijuana and heroine, morphine and cocaine? ).
    And no judicial finding is required to trigger the right of re-occupation: that arises upon the default.
    The right of re-occupation only *requires* a Court ordered writ of possession in cases where access cannot be obtained by other *lawful* means.

    1. Am I alone in thinking that this decision, which focuses on the extent of authority alleged to be held by a governmental office, read together with Horne II cuts down the authority of precedents such as Wckard v. Filburn and Raich v Gonzales.

      I can’t imagine that you are alone in thinking that, but if you’re not, you’re also not alone in being incorrect. Wickard and Raich were about constitutional, not statutory, interpretation.

  20. What is the ‘Biden v. DHS’ case referred to?

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