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Protecting public health from judicial arrogance

The groups lining up against the eviction moratorium are asking judges to disregard both the CDC’s public health judgments and the law.

Democratic Representative Cori Bush of Missouri speaks to demonstrators outside the Capitol on Aug. 3, after the Biden administration announced it was readying a new targeted federal moratorium on evictions.STEFANI REYNOLDS/NYT

The Centers for Disease Control and Prevention recently ordered a new federal moratorium on evictions, a critical protection for millions of Americans facing potential homelessness in the throes of the coronavirus pandemic that has already claimed more than 615,000 US lives — with much of the nation taking renewed measures to reduce transmission in the face of the more transmissible Delta variant. Yet even as cases, hospitalizations, and deaths surge again, landlords and conservative legal groups are running to court seeking to strike down the measure — and to throw millions of vulnerable renters onto the streets. Their legal arguments are a mix of pretext, legal sophistry, and misrepresentation.

The latest challenge is by the Alabama Association of Realtors, which this week filed an emergency motion asking a federal court in Washington, D.C., to strike down the new moratorium, claiming “a majority of the Supreme Court made clear” any CDC eviction moratorium was unlawful. As the Department of Justice made devastatingly clear in its response, the Supreme Court said no such thing. In its only order on the issue, the court actually ruled against the realtors. Any contrary understanding rests on shameless deception.

These same realtors challenged the Trump administration’s broader eviction ban last year, alleging the CDC lacked authority from Congress to halt evictions. In May, Judge Dabney Friedrich, a Trump appointee, agreed but allowed the moratorium to remain in place through July given the ghastly consequences of judicially stripping away eviction protections on short notice.


Having been given their cake but not allowed to eat it, the realtors appealed but lost. Twice. A unanimous panel of the D.C. Circuit Court of Appeals not only kept the moratorium in place, but made quick work of Friedrich’s claim that the moratorium was unauthorized by Congress. The Supreme Court too kept the moratorium in place by a 5-4 vote, although Justice Brett Kavanaugh, writing alone, suggested that his vote with the majority was premised on the moratorium’s expected expiration date of July 31 and that further extensions would require a clearer authorization from Congress. No other justice expressed written views.


As DOJ explained, mountains of established law clearly belie the incorrect premise that a Supreme Court ruling can “be created by cobbling together the votes of dissenting justices with a concurrence.” Kavanaugh’s brief statement reflects the advisory view of one justice; the full court acted to let only the previous moratorium stand. Indeed, 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.

But the D.C. Circuit’s conclusion underscores the most critical point: The CDC’s moratorium is a plainly lawful exercise of authority expressly granted by Congress, which empowered Health and Human Services to “make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.” Reading those words to exclude measures relating to preventing a flood of homeless people from entering the stream of contagious commerce because the text goes on to specify examples like fumigation — and because explicit power to quarantine is contained elsewhere in the law — is an exercise in linguistic legerdemain that would make the ancient Sophists blush.


There is no reasonable doubt that this new moratorium will reduce the risk of deadly COVID-19 spread, or that its careful limitation to high-risk areas and to occupants likely to become homeless if evicted is tailored to do so. Even the landlords who brought suit against the earlier moratorium conceded that order did indeed “prevent the [interstate] introduction, transmission, or spread” of COVID, complaining only that it went too far and that, if it could be upheld, then the sky would be the limit and Congress would effectively have delegated away its lawmaking powers.

But linguistic acrobatics have never been the real game. In her May ruling, Friedrich made clear that her true objection was not that the text afforded the agency too little authority to halt evictions, but rather that Congress afforded it too much authority, making it preferable to distort Congress’s words than to read them faithfully.

Surely that kind of judgment is not for any judge to make. How detailed Congress opts to make its laws — and how much detail it leaves for federal agencies to fill in — is solely for Congress, and for the voters who elect its members, to decide. Since the New Deal, constitutional law has recognized this fundamental axiom. But in recent years, the conservative legal movement has revived the idea that unelected judges should sharply limit Congress’s ability to delegate its own powers. If this were 1930, judges would have firmer legal support for that contention. But that so-called “non-delegation doctrine” has not been the law for 80 years, and constitutionally couched objections to Congress vesting the CDC with the breadth of authority it deems necessary to tackle deadly contagious disease are illusory and as antiquated as Zeppelin airships.


Critically, thousands of congressional grants of executive authority — from environmental statutes to emergency statutes woven into this pandemic’s legal saga like the Insurrection Act and the Defense Production Act — feature language tying broad powers to the best positioned officer’s finding that the measures are necessary to further a specific and important national goal, such as reducing the spread of a deadly virus. Courts have consistently upheld such language, especially when exigency necessitates flexibility and discretion. But if the Alabama realtors have their way, the entire functioning of the federal government is at risk.

And that is precisely the point. This debate over twisted statutory interpretation is a feature, not a bug. It is not the product of a slip-up in legal strategy so much as part and parcel of a concerted effort on the legal right to remake constitutional law and the structure of government. And that reveals a genuinely sad reality: Those arguing that this carefully targeted moratorium is unlawful are willing, by their own admission, to let Americans potentially die just to drag constitutional law back to the 1930s.

Dissenting against another recent example of conservative pandemic opportunism, Chief Justice John Roberts observed that it is no small “matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic.” But neither did the chief say the pandemic was time for “cutting the Constitution loose.” The groups lining up against the eviction moratorium are asking judges to disregard both the CDC’s public health judgments and the law. We mustn’t let them; too many American lives and livelihoods are at stake.


Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus of Constitutional Law at Harvard and was the US Justice Department’s first head of the Office of Access to Justice. Follow him on Twitter @tribelaw.