The End of the Eviction Moratorium Is Not the Supreme Court's Fault
Activists working as journalists have an agenda to blame the Court for everything
On July 31, the federal eviction moratorium expired and landlords, for the first time in over a year, could bring court proceedings to evict their tenants, some of whom were thousands of dollars of arrears due to the pandemic. This is an awful situation- obviously awful for the renters, but awful for the economy too. We’re going to see an increase in homelessness and a sudden glut in the rental housing market with empty units everywhere.
Democrats immediately formed a circular firing squad, blaming each other for the demise of the moratorium. In reality- and this is getting into the legislative weeds- the immediate problem was Senate Republicans, who were likely to filibuster any legislative attempt to extend it. The longer term problem was that Democrats did not anticipate this problem long ago and either insert language into a must pass bill or simply shower landlords with federal funds to pay people’s rent.
On this last point, I am amazed. Yes, that would have cost a lot of money. But we spent a ton of money on the pandemic. We acted as if money was no object (and were right to do so). But somehow we didn’t set up a reliable rent support program? Right now, apparently the funds exist to do it, but states are scrambling around to create the programs. This is a titanic policy failure.
But a couple of highly partisan legal reporters- Ian Millhiser of Vox and Mark Joseph Stern of Slate- have a different villain: the Supreme Court. The Court did not, of course, strike down the moratorium. They upheld it. But they set a time limit on it, July 31, because it was actually illegal. In other words, they acted exactly as you would want a court to act- upholding the rule of law while not throwing the country into chaos. This isn’t good enough for Millhiser and Stern, who have a political project of criticizing the Court.
The important thing to understand here is that the legality of the eviction moratorium was not really a close question. The CDC, an agency that generally has no jurisdiction over landlord-tenant matters, claimed it had the power to impose the moratorium under its general statutory grant of power, which says it has the power to combat communicable diseases. If people are homeless, the CDC reasons, they might spread communicable diseases.
The problem is this is a bad legal argument. It’s creative- but creativity is not a compliment in appellate argumentation. We construe statutes in context. Here, the context is that the CDC is a medical agency, not a housing regulator. So the power to combat communicable diseases is reasonably read as the power to do medical stuff. As the rule of statutory construction goes, however broad language might be, it applies only to those things that it was intended to apply to.
And further, the power to combat communicable diseases does not suggest a general power to regulate anything that might somehow relate to a disease. If it did, the CDC would essentially have dictatorial power during a pandemic. This would violate another rule of statutory construction- do not construe statutes so that they have an absurd result.
Imagine a statute that granted a federal water agency the power to regulate car washes. And the agency decided to use it to pass detailed rules for car repair shops. Would that be legal? Of course not. The agency’s regulatory ambit is water, and the fact that car repair shops might occasionally wash a car does not mean Congress intended to grant the agency power to regulate anything a car repair shop does.
Notably, this argument has nothing to do with the “nondelegation doctrine” Millhiser writes about. It is a common bit of liberal catastrophizing that the current Court is going to rehabilitate the decades old nondelegation doctrine and hold that Congress has to make narrower grants of power to agencies. This may happen, but it has nothing to do with why the CDC rule is illegal. Even liberals concede that the rule that an agency can’t act outside delegated power is a correct rule. Millhiser is changing the subject.
And this once again shows why legal journalism is so untrustworthy. Millhiser and Stern aren’t trying to educate their readers. They are trying to mislead them, to point the finger at the Supreme Court for what was clearly a failure of Congress to pass a statute simply empowering the federal government to stop evictions, or a failure of Congress and the White House to appropriate money to pay renters. And they are doing it because they don’t like the Supreme Court’s decisions in other areas and want to politicize and pack the Court.