President Joe Biden, joined by Johnson & Johnson CEO Alex Gorsky and Merck CEO Ken Frazier, delivers remarks on COVID-19 vaccine production Wednesday, March 10, 2021, in the South Court Auditorium in the Eisenhower Executive Office Building at the White House. (Official White House Photo by Adam Schultz)
Six Supremes got it right on President Biden’s unconstitutional eviction moratorium. But here’s why it should have been unanimous.
With the Supreme Court’s eight-page unsigned opinion, it is unequivocally clear that the Centers for Disease Control and Prevention does not come close to having legal authority to ban evictions.
A reading of Justice Breyer’s dissent eviction-moratorium case, reports Charles C. W. Cooke in NRO, allows focus on Breyer’s belief, as well as on his two co-dissenters’ beliefs, that “the executive branch of the federal government is permitted to do whatever the hell it wants, providing that somewhere within the thicket that is the U.S. Code there exists a law that might be plausibly connected with their aim.”
Congress is expected to be precise when doling out broad powers to the executive — which, in any case, it is allowed to do only up to a certain point. The fact that we have a pandemic “does not permit agencies to act unlawfully even in pursuit of desirable ends.” And the CDC doesn’t get to make this call; Congress does. “If a federally imposed eviction moratorium is to continue,” the majority concluded, “Congress must specifically authorize it.”
Landlords, the Court writes, “not only have a substantial likelihood of success on the merits—it is difficult to imagine them losing.”
Reports the WSJ:
Justice Brett Kavanaugh initially joined Chief Justice John Roberts and the three liberals in maintaining the stay. In a brief opinion, however, “Kavanaugh said he agreed that the CDC had exceeded its authority. “
The Justice wanted “to give the President more time to distribute rental aid or for Congress to pass a law extending the ban.”
Justice Breyer proposed that because Congress wrote a statute that serves “to empower the CDC to take ‘other measures, as in [its] judgment may be necessary,’” much of what the CDC does during a crisis should be assumed to be fine. “But, as the majority opinion makes clear, when taken together these arguments would lead to a de facto executive-branch dictatorship,” argues Mr. Cooke.
Abuse of Executive Power
As the WSJ notes, Mr. Biden knew this but used the extension to buy time to deflect criticism from the left after a previous CDC extension expired July 31. “While the Justices didn’t quote Mr. Biden, the forceful opinion makes clear they noticed how he abused their forbearance.”
“It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts,” explains the WSJ.
Under the government’s argument, there’s no limiting principle to CDC authority.
Could the CDC:
- Mandate free grocery delivery to the homes of the sick or vulnerable?
- Require manufacturers to provide free computers to enable people to work from home?
- Order telecommunications companies to provide free high-speed Internet service to facilitate remote work?”
Congress must also use “exceedingly clear language” when intruding “into an area that is the particular domain of state law” such as the landlord-tenant relationship.
According to the WSJ, the CDC power grab is so obvious that the decision should have been 9-0.
But the three liberal Justices dissented in part on grounds that the Court should have required a full briefing and argument before lifting the stay. This would have made the Justices accomplices to Mr. Biden’s legal gamesmanship.
True to form, Speaker Nancy Pelosi denounced SCOTUS for having “immorally ripped away that [eviction] relief in a ruling that is arbitrary and cruel.”
Rather than keep the House in session to enact legislation to stay the moratorium, Speaker Pelosi preferred to do nothing.
It’s so much easier to denounce judges than it is to hold a vote and take responsibility for it.
That the decision was not 9-0 should be a source of great shame for Breyer, Sotomayor, and Kagan, maintains Charles Cooke.
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