Why Do People Keep Overlooking the Sixth Circuit?
For some reason, legal commentators seem to overlook the U.S. Court of Appeals for the Sixth Circuit when discussing legal decisions concerning the CDC eviction moratorium.
For example, in an August 6 Boston Globe op-ed defending the legality of a moratorium , Harvard law professor Laurence Tribe wrote wrote:
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.
This is doubly wrong. First, the D.C. Circuit did not issue a “binding ruling on the merits,” as the Order itself makes clear. Before the court was a motion to vacate the district court’s stay of a decision concluding the moratorium was unlawful. In assessing this question, the D.C. Circuit panel concluded that those challenging the moratorium were unlikely to succeed on the merits, but it also made clear that it was “not resolving the ultimate merits” of the challenge. I am not sure how the court could have been any more explicit on this point.
Second, and more importantly, the Tribe op-ed ignored that another federal appellate court—the U.S. Court of Appeals for the Sixth Circuit—had issued a binding ruling on the merits (as I noted here) and concluded that the moratorium exceeded the agency’s statutory authority. In Tiger Lily v. U.S. Dept of Housing and Urban Development, a unanimous panel of the Sixth Circuit conclude
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