A quick response to Mark Joseph Stern
It wasn't the point of my piece, but the DC Circuit's reasoning on the eviction moratorium wasn't very persuasive
Mark Joseph Stern responded on Twitter to my piece this morning on the coverage of the SCOTUS decision on the eviction moratorium (which included his coverage in Slate). He had a number of beefs with what I said, and you can read the exchange, but the fundamental point I would make is that my piece was not saying that the Supreme Court’s decision was unimpeachable, but that it was entirely reasonable under the circumstances and there was no basis to trash the Court (as Stern did) as the party at fault for what was clearly a congressional failure to either properly extend the eviction moratorium or get money out to renters and landlords.
Note that this analysis does not depend on what the D.C. Circuit held with respect to the moratorium. In fact, a D.C. Circuit panel had declined to enjoin the moratorium (specifically, a lower court decision ruling the moratorium was illegal had been stayed, and the D.C. Circuit had declined to lift the stay). This is a lot of legal language (which may explain why I did not get into it in my original post), but suffice to say, it went like this: (1) federal government imposes moratorium on evictions, (2) District Court (lowest level) rules the moratorium illegal, but stays the ruling because it does not want to see people thrown out on the street, (3) D.C. Circuit upholds the stay (and thus keeps people in their homes), but also says it thinks the moratorium is legal, and (4) U.S. Supreme Court, speaking through Justice Kavanaugh, also upholds the stay but indicates that it will not allow the stay to continue past July 31 (thus giving Congress and the White House just over a month to fix things).
Stern’s complaint is that I did not discuss the D.C. Circuit’s ruling, in which it indicated that it thought the moratorium was legal. Suffice to say, the main reason I did not discuss it was that it was not the point of my post- my point was simply that the Supreme Court’s ruling was reasonable, and consistent with the rules of statutory construction. It was. And my problem with Stern’s reporting was that he portrayed the Supreme Court as having made this lawless, terrible ruling that had kicked tenants to the curb, when in fact it reasonably interpreted the law and gave tenants and the political branches a month to figure out what to do. The fault was with the politicians, but Stern wanted to take the blame off the politicians and put it on the Supreme Court.
However, since Stern says I owe my readers an explanation of the D.C. Circuit ruling, I happily offer this explanation. The D.C. Circuit concluded that the moratorium was legal for two basic reasons- because it thought the statute granting the CDC the power to fight communicable diseases extended to the power to intervene in landlord-tenant cases throughout the country and preclude evictions from going forward, and because it thought Congress had ratified the CDC’s power when it added a line of text authorizing the CDC to impose a moratorium until July 31, 2021 (the date when the Supreme Court held the moratorium must expire).
Neither of these arguments is very persuasive. The problem with the first one is exactly what I discussed in my earlier post- it’s ridiculous to construe a statute granting power to an agency full of doctors to fight communicable disease as some sort of broad mandate to regulate any aspect of society that might relate somehow to the pandemic. If that’s the case, the CDC would basically have dictatorial power. ANYTHING could have something to do with spreading communicable disease. For instance, the CDC could require your local transit company to move its bus stop- after all, people can get COVID on buses. The CDC could require you to replace your home air conditioner- poor ventilation can cause COVID. The CDC could restrict dating apps- people get COVID on dates! Etc.
The way we avoid this is by reading the statute in context- the CDC’s power is to do the stuff that doctors do in the public health community to fight communicable diseases. Since doctors don’t generally have power over unlawful detainer proceedings, the statute does not grant the CDC that. And by doing that, we avoid absurdity.
The D.C. Circuit’s other argument was that Congress ratified the CDC’s power to impose an eviction moratorium. And they did- but only until July 31. Hence Justice Kavanaugh’s entirely reasonable ruling that an eviction moratorium could be imposed until July 31. Congress could have actually included language clarifying the CDC’s power to impose eviction moratoria generally, but it did not do so. Congress carefully dodged the issue. The D.C. Circuit read a broad of grant of power into a dodge.
Again, I want to emphasize, none of this is really relevant to my point, which is that it’s irresponsible for legal journalists to blame the Supreme Court for what was a bog-standard interpretation of what Congress actually did, combined with a quite reasonable remedy that left the eviction moratorium in place for a month to allow the government and tenants time to change course. That point stands.