On August 3, 2021, the Biden administration – through the Centers for Disease Control and Prevention (CDC) — re-instituted a rental eviction moratorium after an earlier moratorium issued by the Trump administration CDC expired at the end of July.  Incredibly, the government took this action although it knows full well that the moratorium is unlawful and is sure to be struck down by the courts.  The Biden administration’s action is nothing more and nothing less than a gross abuse of the government’s regulatory power:  the assertion of supremacy over the rights of citizens regardless of the legality of the action.

Indeed, as even CNN reported, President Biden “did not sound particularly confident his administration’s new freeze on evictions would hold up in court when he explained the move in the East Room this week. Instead, he said the new ban, even if challenged, would at least ‘give some additional time’ for billions in unspent housing relief dollars to reach those in need.”  Left unsaid by Biden was that the motive for renewing the moratorium was to appease the left wing of his party, which was clamoring for the renewal.  In other words, for the left, the renewed moratorium is purely a cynical exercise in political expediency.  For the right, it is also an entirely unacceptable violation of the rule of law and the proper functioning of government.

Those kinds of issues are normally resolved in the courts and, indeed, litigation over the initial moratorium had been wending its way through various federal courts since 2020.  One case finally reached the Supreme Court in June on a petition asking the Court to remove a stay of the trial judge’s decision that the moratorium was unlawful.  On June 29, 2021, the Supreme Court clearly signaled that a majority of its members agree with the district court that the moratorium exceeds the CDC’s authority.  In ordinary circumstances, that would have caused the Court to vacate the stay and let the trial court’s order striking down the moratorium take effect.  But because the moratorium was set to expire only one month later, Justice Kavanaugh — who was the swing vote — decided it would be more disruptive to lift the stay immediately than to let it expire in due course.

This was a discretionary judgment and reflects a real-world application of the judicial function.  The Court’s ruling essentially says:  The problem is going to resolve itself in relatively short order at this point without the need for further judicial determination, so there is no practical purpose served in having the laborious judicial process continue to lumber along, and if we do change the status quo right now it will be more disruptive than if we just let the thing die on the vine in 32 days.  The courts tell themselves that this kind of reasoning is a form of “judicial economy,” meaning the court doesn’t decide things that in the real world don’t “really” require a court decision.  One of the drawbacks of such a “reasonable” and “practical” approach, however, is that it does not produce a binding precedent that actually reflects the court’s true opinion on the precise legal question.  That drawback immediately surfaced its head in this case.

The CDC Orders on Masks and Eviction Moratoriums Exceed Its Authority and Were Always Unlawful

Lawyers agree that there is a substantial argument that the federal eviction moratoriums and their companion, the CDC mask mandate, are unconstitutional because they are an exercise of the “police power,” which is reserved to the states.  In this context, “police power” means the power of the government to regulate behavior for the betterment of the health, safety, morals, and general welfare of its inhabitants.  This general “police power” is vested in the states.  In contrast, the federal government has only the powers given to it by the U.S. Constitution.  Some argue that the federal government’s authority to regulate interstate commerce empowers it to impose the eviction moratorium and the mask mandate.  Most constitutional scholars are doubtful of that – as President Biden’s comments illustrate – although a small minority disagree.  My own view is that it is not up for debate; a pandemic is a health event, not a commercial enterprise.  I see no constitutional power for the federal government to impose either measure.

However, it is not necessary to resolve the constitutional issue because there is another — indisputable — reason why the eviction moratoriums and mask mandate are plainly unlawful: They exceed the authority that Congress has delegated to the CDC.  The power of any federal agency is limited to the authority delegated to it by the constitutional actor that possesses that power — either the President or the Congress.  Congress wields the power of the Commerce Clause under Article I of the Constitution, and Congress has not given the CDC any authority that would enable it to halt residential evictions or mandate that all travelers wear masks.

The CDC claims it is authorized to issue the eviction moratorium and the mask mandate by a 1944 statute (42 U.S.C. § 264), which authorizes the agency to promulgate certain regulations to control communicable diseases. The first section of this statute authorizes the agency “to make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases” into the United States or between the various states.

But Congress limited this authority by defining in the statute the steps the agency may take to enforce its regulations.  These steps are:  inspection, fumigation, disinfection, sanitation, pest extermination, destruction of infected animals or articles, and “other measures, as in [the CDC’s] judgment may be necessary.”  This section of the statute provides for enforcement measures with respect to animals or articles that may transmit communicable diseases to humans; it does not cover enforcement measures with respect to people themselves.  The next three sections of the statute provide for the quarantining of humans, but only those who are “reasonably believed to be infected.”  Thus, a broad measure such as a mask mandate for all travelers is clearly outside of the statutory authority and none of the sections provide authority for measures anything like an eviction moratorium.  No competent lawyer should have concluded otherwise.

It should therefore not have been a surprise when the federal Sixth Circuit Court of Appeals ruled in March 2021 that this statute does not confer authority on the CDC to issue a nationwide moratorium on evictions.  The court explained that the first section of the statute “is concerned exclusively with restrictions on property interests” whereas the “later subsections concern the government’s limited power to restrict liberty interests—by means of enforced quarantine—in order to prevent the spread of disease.” The “other measures” authorized by the statute to restrict property interests are measures like those listed — inspection, fumigation, disinfection, sanitation, and pest extermination — which are fundamentally different from a moratorium on evictions.

The court provided two additional reasons that support this conclusion.  First, regulation of the landlord-tenant relationship is historically the province of the states, and federal statutes will not be read to alter the usual constitutional balance unless Congress has made unmistakably clear its intent to do so.  The 1944 statute does not demonstrate any congressional intent for federal officials to regulate landlord-tenant relationships in the name of public health.  Second, it is unreasonable to assume that Congress intended to give the CDC unprecedented power to impose whatever regulatory actions, without limit, that it believes will help prevent the spread of disease.

DC Litigation on the Eviction Moratorium Leads to Supreme Court

In May, a federal district court in D.C. reached the same conclusion as the Sixth Circuit, i.e., that the CDC lacks authority to impose an eviction moratorium. That court struck down the CDC’s moratorium, but stayed (postponed the effectiveness of) its ruling while the Government pursued an appeal. In June 2021, the D.C. Circuit Court of Appeals continued the stay of the district court’s order and said that there was a substantial likelihood that the 1944 statute can be read to authorize the eviction moratorium.  The D.C. Circuit’s analysis in reaching that conclusion is preposterous.  It is a clear example of results-driven reasoning and is not even worthy of discussion.

The plaintiff in the D.C. case – a landlord association — promptly asked the Supreme Court to review the stay.  By a vote of 5-4, the Court declined to vacate the stay.  Although the full Court did not explain its reasoning, one member of the majority, Justice Kavanaugh, did so. He agreed that the CDC had exceeded its statutory authority by issuing the eviction moratorium.  Nonetheless, because the moratorium was then scheduled to end in one month, on July 31, he concluded that it would be more disruptive to the orderly distribution of congressionally appropriated rental assistance funds to lift the stay and abruptly end the moratorium. Justice Kavanaugh’s opinion demonstrated that, regardless of the Court’s technical ruling on the stay, a majority of the Supreme Court justices (Kavanaugh plus the four dissenters who would have lifted the stay) agree that the statute does not authorize the eviction moratorium.  Further, it is quite likely that Chief Justice Roberts, a member of the majority on the stay issue, also shares this view.

Significantly, Justice Kavanaugh stated in his opinion that a “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”  This was a clear warning that the only potentially legal way to extend the eviction moratorium beyond July 31 would be for Congress — not the CDC — to authorize the moratorium.  (Such legislation would still raise the issue of whether Congress has the constitutional authority to authorize an eviction moratorium, but it would at least rectify the problem that the CDC lacks statutory authority).

However, as a practical matter, new legislation to extend the moratorium was a non-starter because there are not enough votes in the current House of Representatives, much less the Senate, to enact such a moratorium.  That is why the Biden administration planned to — and did — let the moratorium expire on July 31.

The Renewed Eviction Moratorium Is the Cynical Result of Politics Divorced From Law

Although it should have been, that unfortunately was not the end of the matter.  The left wing of the Democratic Party and Nancy Pelosi clamored for a renewal of the moratorium.  Doing so deflected attention from their own inability to legislatively enact a moratorium and shifted the blame to the administration.  President Biden initially took the heat, explaining — correctly — that his hands were legally tied.  But he soon capitulated.  Evidently, he decided that it is better to blatantly abuse the rule of law than to stand up to criticism from within his own party.  Renewing the CDC moratorium enables him to shift the blame to the courts when they strike down what he obviously knows is an unlawful agency action.

To try to run cover for his about-face, Biden reported that he consulted with a number of experts on constitutional law before renewing the moratorium.  This was purely window dressing because the illegality of both the prior and the current eviction moratoriums (and the mask mandate) arises from statutory construction, not a constitutional analysis.  It is unnecessary to reach the constitutional question to decide the legality of these orders.  Indeed, courts decline to reach constitutional issues when a case can be decided based on an argument of non-constitutional dimension.  Here, the Supreme Court has already signaled how it construes the statute and the CDC orders fail to pass muster on that basis.  There is no mystery here.  The renewed eviction moratorium order is unlawful.  It is only a question of when the courts will technically say so.

Legal Options Now in the Eviction Moratorium Case

As President Biden’s remarks make clear, the administration does not believe the renewed moratorium is lawful.  It fully expects the courts to strike it down.  But the calculus is that the judicial process will take weeks or months and buy additional time for renters.  Using the federal court system as a delay tactic is the real point.  Never mind that using the courts for this purpose is a violation of the Federal Rules of Civil Procedure and the legal ethics rules that govern lawyers.

Unfortunately, the renewed moratorium and the cynical misuse of the judicial process to prolong it was made possible by Justice Kavanaugh’s “reasonable” decision in June to let the previous moratorium stand for one more month, despite his belief that the moratorium was unlawful.  Because the Supreme Court left standing the stay of the district court’s order invalidating the moratorium, the administration did not technically violate that order by instituting the new moratorium.  Had Justice Kavanaugh voted with his four colleagues to lift the stay, there would be a federal court order in effect that the CDC lacks authority to halt evictions and, had the CDC attempted to institute a new moratorium, it would be in violation of that order and possibly in contempt of the court.  In that circumstance, it is probably safe to conclude that the CDC would not have issued a renewed moratorium no matter how loudly the progressive Democrats wailed.

Of course, had Justice Kavanaugh voted as he did, but not explained his position, the situation would be even worse than it is now.  Although affirming the stay would not have technically been a ruling that the moratorium was legal, many lawyers would have concluded that a majority of the Supreme Court shared the D.C. Circuit’s view that the statute does authorize the moratorium.  At a minimum, therefore, Kavanaugh’s opinion illuminates what the Supreme Court Justices are actually thinking on the issue, and it does empower the landlord association’s position that the renewed moratorium is no more legal than the original moratorium was.

As things currently stand, however, the litigation landscape is murky.  Because the district court struck down the previous moratorium, but stayed that order, and that moratorium has now expired, and the government claims this order is a “new” moratorium, the case presents a number of thorny questions as to whether the court’s existing order applies.  If it doesn’t, then whether the district court can simply extend its order to the new moratorium given the procedural posture of the case, or whether the landlord association must file and litigate a new case is also a difficult question.

One thing that is clear is that the district court’s order finding the original moratorium unlawful is currently stayed pending the appeal, which is still technically ongoing at the D.C. Circuit Court of Appeals and which is likely to last for many more months.  So long as the original order remains stayed, the district court cannot take action to enforce it.  The district court could lift its stay, however.

The goal for the lawyers representing the landlord association is to get the renewed moratorium struck down as quickly as possible.  Given the unusual posture of the case, they have two different options for how to proceed – file a motion in the existing case or file a new case — each of which has pros and cons, and neither of which is the obviously correct choice.

On Thursday, August 5, two days after the renewed moratorium went into effect, the landlord association lawyers filed a motion asking the district court to find that its existing order covers the renewed moratorium or else to issue a new or expanded order declaring the moratorium unlawful.  The motion tries to navigate the difficult issue that it is asking a trial court in a case that is on appeal to apply an existing order to a new factual development.  Curiously, the motion does not rely on Federal Rule of Civil Procedure 60(b), which empowers a trial court to amend a judgment in some circumstances, including on equitable grounds, which the motion is clearly attempting to evoke – it argues that the CDC has acted in bad faith by issuing the renewed moratorium after telling the Supreme Court that it was not going to extend the prior one.  The motion does ask the court to lift the stay of its existing order, which is necessary for the district court to take any action.

The lawyers styled their pleading as an “emergency” motion in an effort to accelerate its consideration, although the court’s rules make no specific provision for expediting such motions and do not establish any mandatory timelines for them.  In practical terms, the only way to definitely secure an expedited hearing under the court’s rules would have been to file a new complaint and seek a temporary restraining order, as motions seeking injunctive relief have an established expedited procedure.

Fortunately for the plaintiff, this case is assigned to a very able and conscientious judge – Dabney Friedrich – and she promptly issued orders requiring the government to file its Opposition to the motion by 9 a.m. the next morning (Friday), allowing the plaintiff to file a Reply by 7 p.m. that evening, and scheduling a hearing on the motion for Monday morning, August 9^th, at 10:00 a.m.  Thus, the landlord association has obtained very quick action on its motion, but only because the assigned judge is of a mind to provide it.

As you would expect with such rapid filings, the pleadings are not models of scholarly argument.  The motion argues that the renewed CDC moratorium conflicts with the Supreme Court’s “ruling.”  The government counters that the Supreme Court did not issue a ruling other than to affirm the stay.  This is technically correct.  The government argues that the case is therefore still controlled by the D.C. Circuit’s decision upholding the stay, which as noted, also preposterously indicates that the moratorium may be lawful.  The landlord association replies that the district court cannot simply ignore the plain and clear meaning of Justice Kavanaugh’s analysis and how many of the Supreme Court Justices obviously agree with it.  In short, the landlord association paints with a broad brush, crafting an overall picture, while the government is pinpointing technicalities.

Judge Friedrich apparently intends to rule promptly.  Whether she will think there are technical or procedural problems with applying her earlier order to a “new” moratorium or with issuing a new order without the filing of a new complaint formally setting forth the new facts remains to be seen.

Because of the many potential technical problems with filing a motion asking for further relief on a stayed order based on new facts in a closed district court case that is up on appeal, the landlord association would have probably been wise to also pursue a second legal option in this case.  There is a possibility that even if the district court is inclined to agree with the landlord association on the merits, it may also conclude that one technical or procedural issue or another prevents a ruling in their favor.

For this reason, the landlord association may have been better served to also file an entirely new case against the renewed moratorium.  After all, the government is claiming the current moratorium is not an extension of the prior order, but rather a new one responding to the development of the Delta variant of the covid.  Whether that is legally correct, or not, it is the government’s position and so forms the basis for a good faith filing by the landlord association attacking it.  A new case avoids the technical and procedural issues that filing a motion in the old case presents.  It creates a clean slate factually and legally for the district court to write on.

Under the local rule of the D.C. district court governing “related cases,” it is virtually certain that a new case would have been assigned to Judge Friedrich.  With both a new case and a motion in the old case in front of the same judge, the new case would provide an alternate vehicle for a ruling if the court concluded that technical or procedural hurdles made a ruling on the motion difficult or impossible.  As the case stands now, if Judge Friedrich concludes that some technical issue precludes a ruling in favor of the landlord association and that a new case must be filed, the landlord association lawyers will have lost time because new case papers and injunctive pleadings will need to be drafted and filed and notices provided to the government for a second hearing.  All of that could have been consolidated or at least already in progress if the lawyers had filed both a motion in the existing case and also a new case.

There is no mechanism to return to the Supreme Court directly at this point on this case; a fact that would have played into the Biden administration’s conclusion that the federal legal process would, in fact, create delay.  Nor was there any realistic option for a request for a show cause order as to whether the CDC was in violation of the district court’s order and potentially in contempt of court.  With the stay in force – because the Supreme Court affirmed it – the district court’s order is not in effect and therefore the government cannot technically be in violation of it no matter what it does.  Thus, the only realistic options for the landlord association were to file a motion or to file a new case.  The safest path to the fastest resolution was to have simultaneously filed both.  However, we will see what the district court does with the motion that the landlord’s association did file.

The Decision to Renew the Eviction Moratorium Spotlights a Bigger Problem

What is most disturbing about this episode is not simply that the executive branch has overreached its authority in issuing eviction moratoriums or the mask mandate.  That kind of overreach happens on a recurring basis and is one of the principal reasons why the Founders created an independent judiciary — to constrain the executive branch to its lawful domain.  The most disturbing aspect is that this administration knows full well that it is overreaching and that the courts will certainly be striking down the new action – and it took the action anyway.  That is bald denigration of the rule of law.  Even that liberal bastion — the Washington Post editorial board — pointed this out, saying that the moratorium is “almost certainly illegal” and admonishing that:  “Mr. Biden does not get a pass on the rule of law because his heart is in the right place.”

What has occurred is actually much worse than the Post and the Biden administration realize.  The administration seems to view the situation as something akin to:  “We know it’s not legal, but let’s give it a go anyway and if it doesn’t work, then there’s no real harm done.”  In reality, however, what is happening is the willful and intentional disregard by the executive branch for the limits of its authority.  That behavior damages the public’s confidence in one of our essential — and necessary — principles: The executive branch operates only on the basis of the authority conferred to it by the governed, not by wielding raw power regardless of the legality of its actions.  The blatant and unabashed mutilation of that principle is a far, far worse development than any decision on an eviction moratorium could have ever been.