Seven Levels of Fallout from the Eviction Moratorium Case
On Thursday evening, the Court vacated the stay in Alabama Association of Realtors v. HHS. The Court released an eight-page per curiam majority opinion, and an eight page dissent by Justice Breyer. There are seven levels of fallout.
First, the Biden Administration suffered two significant losses in the span of 48 hours. The Roberts Court does not seem to be going easy on the new President. So far, Biden has received a remarkably rough reception. And these rulings do not bode well for the many other cases trickling up the lower courts. The Court did not cite Biden’s statements, but alluded to the political pressure with a reference to the “three day” gap.
Second, Larry Tribe and the other members of the LawProf Kitchen Cabinet did not serve the President well. The Court found that the new policy was virtually “indistinguishable from the old.” OLC and the SG no doubt predicted this devastating defeat. But they were marginalized. The relationships between DOJ and the White House will need to be mended.
Third, this shadow docket entry included a well-reasoned majority opinion. The Court spelled out with some clarity why the policy was almost certainly unlawful. The majority opinion favorably cited UARG and Brown & Williamson to invoke the “major question” doctrine.
Even if the text were ambiguous, the sheer scope of theCDC’s claimed authority under §361(a) would counsel against the Government’s interpretation. We expect Congress to speak clearly when authorizing an agency to exercise powers of “vast ‘economic and political significance.'” Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160 (2000)). That is exactly the kind of power that the CDC claims here. At least 80% of the country, including between 6 and 17 million tenants at risk of eviction, falls within the moratorium.
Additionally, the Court explained that Congress needs to use a clear statement to intrude onto a longstanding attribute of state law: landlord-tenant relationships. I raised this argument in an amicus brief I filed in Terkel v. CDC.
Fourth, the Court favorably cited Loretto, and endorsed the right to exclude.
And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership—the right to exclude. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 435 (1982).
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