Eviction Moratorium
Housing activists erect a sign in Swampscott, Massachusetts on October 14, 2020. (AP Photo/Michael Dwyer, File)

On August 3, the Biden Administration issued an order from the Centers for Disease Control and Prevention creating a second eviction moratorium. Given the agency’s mixed record in court defending the first order, which applied to the entire United States, the CDC revised its provisions to “target specific areas of the country where [Covid] cases are rapidly increasing, which likely would be exacerbated by mass evictions.” The moratorium’s reach still extends to 80 percent of counties.

At a court hearing on August 9 to hear legal challenges to the new rules, U.S. District Court Judge Dabney Friedrich said:

Given that this order is almost identical to the CDC’s earlier order, as to the effect of it, it’s really hard in light of the Supreme Court’s decision, in light of the Sixth Circuit’s decision, in light of statements this administration has made both before and after the Supreme Court decision, to conclude there’s not a degree of gamesmanship going on.

But it is hardly unprecedented for authorities, in hope of winning the day, to tweak either regulatory or legislative initiatives that the judiciary has earlier rebuffed. Recall that the Trump travel ban order ultimately approved by the Supreme Court was a third draft. The Trump administration’s earlier drafts were rejected in decisions by three district courts and the U.S. Court of Appeals for the Ninth Circuit.

In issuing an eviction moratorium, the Biden administration is not claiming any inherent constitutional powers of the presidency. President Joe Biden is not, like Abraham Lincoln, asserting necessity as a justification for suspending habeas corpus unilaterally. He is not, like Harry Truman, claiming that his commander-in-chief powers allow him to seize domestic steel mills. He is not even, like Donald Trump, relying on nothing at all in ordering his Office of Management and Budget to set annual “cost ceilings” on the number of regulations administrative agencies may issue.

The moratorium controversy is a dispute over law and policy. It is about statutory, not constitutional, interpretation. Article II, which sets out the president’s powers, is not involved.

The administration acknowledges that any power it has to protect public health must come from Congress, presumably exercising its Commerce Clause power to protect the nation from significant threats to interstate commerce, including public health threats that arise from local activity. The legal fight is about whether the CDC is properly interpreting two sentences in Section 346 of the 1944 Public Health Act, which is based on that power.

The first sentence of the key paragraph is worded broadly enough—especially if read literally—to encompass a health-protective eviction moratorium. Originally empowering the Surgeon General, whose relevant functions have since been transferred to the CDC director, it authorizes that official “to make and enforce such regulations as… are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” These words pose no bar to eviction bans as a technique for preventing the spread of disease.

This section’s capacious initial sentence, however, is followed by another: “For purposes of carrying out and enforcing such regulations,” the director “may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.” Opponents of the moratorium argue that this second sentence shows a carefully delineated legislative intent. As explained by one federal judge who reads the statute narrowly, the text reveals that Congress empowered the executive in the first sentence to regulate only “animals or articles which are themselves infected or a source of contagion that presents a risk of transmission to other people.”

Defenders of the moratorium read the second sentence, however, as having no such limiting effect. Rather than narrowing the reach of the first sentence, they argue, the second sentence underscores the breadth of the first. “Such regulations” as the first sentence permits may even allow the CDC to trespass upon or seize property in ways that might otherwise raise problems under the Fourth Amendment. But such trespasses and seizures do not exhaust the CDC’s authority.

In taking the broader view, the Biden administration is hardly engaging in what the National Review’s David Harsanyi laughably called an “unprecedented attack on the Constitution.” U.S. District Court Judge J. Philip Calabrese—a Trump appointee who ruled last March in Ohio that the CDC’s prior moratorium was unlawful—came closer to the mark. The question of the moratorium’s legality, Calabrese wrote, “depends on interpretation of the particular statutes at issue—a… lawyerly and arcane task about which reasonable people may ultimately disagree.” Indeed, although six lower courts ruled against the earlier CDC moratorium, three others would have upheld it. And contrary to Harsanyi in the National Review, the Washington Post, and perhaps even President Biden—the Supreme Court has never ruled on the matter.

However inadvertently, Biden added to confusion about the controversy when he cast his deliberations as a matter of consultation with “constitutional lawyers” and said, “the bulk of the constitutional scholarship says that [a moratorium] is not likely to pass constitutional muster.” The only constitutional question plausibly implicated is whether the president would have inherent Article II authority to impose a health-protective peacetime eviction moratorium. The answer to that question is clearly “no.” It is hard to imagine any competent constitutional lawyer anywhere on the political spectrum concluding otherwise.

There is, to be sure, a backdrop constitutional question that affects the nay-sayers’ reading of the Public Health Act. Conservative Justices, as well as legal scholars, have raised anew the “non-delegation question”—that is, they debate whether Congress may constitutionally authorize executive action in terms as broad as those embodied, for example, in that generous initial sentence on which the CDC relies. As long understood by the Supreme Court, the so-called nondelegation doctrine precludes Congress from giving the executive branch policymaking authority unless it is constrained by some “intelligible principle.” The principle must be limiting enough to enable courts to test the legality of how administrative authority is being exercised. Giving the executive branch limitless discretion would, under the nondelegation doctrine, put Congress in the unconstitutional position of abdicating its legislative power.

Whether the Public Health Act, read broadly, violates the nondelegation doctrine is debatable under current case law, but, for modern-day conservative jurists, the question may appear serious enough to invoke what is called the “constitutional avoidance canon” in reading the Public Health Act. If a statute is subject to alternative plausible readings, but one of the alternatives would raise serious constitutional issues, the “avoidance canon” counsels judges to choose the less problematic reading. The canon puts a thumb on the scale in favor of the more restrictive interpretation of CDC power—at least if you think reading the statute broadly would raise a serious constitutional concern about delegation.

A conundrum exists, however, because the “constitutional avoidance canon” is not the only venerable guide to interpretation at stake here. Another is the “ordinary meaning” canon, a favorite of the Roberts Court. If the ordinary meaning of a statutory provision meaning is clear, judges following this rule would apply that plain meaning. In this case, the plain meaning of the broader sentence in question favors the CDC.

Yet another is the canon that so-called remedial statutes (laws that repair defects in earlier statues, provide redress to legally injured people, or introduce “regulations conducive to the public good”) ought to be read broadly in order to accomplish their purposes. Following that reasoning, if Congress wanted the CDC to have adequate power to combat interstate threats to public health, and if a health-protective eviction moratorium would do so, the “remedial” canon gives points to the CDC. After all, the broadly worded first sentence is not an entirely blank check for the CDC. Any measures adopted must be “necessary” to accomplish Congress’s explicit objectives. Requiring a demonstration of reasonable necessity in this context provides an “intelligible” limitation on CDC discretion. From this point of view, the specter of excessive delegation seems vaporous. (I’m putting aside for purposes of this argument important scholarship here and here, to which the Supreme Court has yet to attend, that questions whether the non-delegation doctrine has any strong historical basis at all.)

It is speculation about the state of the nondelegation doctrine that makes the current role of the Supreme Court problematic. National Review, the Washington Post, and even Biden at his press reference, all said—quite wrongly—that the Supreme Court has ruled that the CDC doesn’t have power to impose an eviction moratorium. There has been no such ruling. Last May, U.S. District Court Judge Friedrich sided in D.C. with plaintiffs in striking down the CDC moratorium that expired in July. The judge, however, “stayed” her order—that is, she prevented it from going into effect so that the government could appeal. The U.S. Court of Appeals for the D.C. Circuit refused in June to lift that stay, meaning that the moratorium remained in place. The plaintiffs then filed an “emergency application” to the Supreme Court, asking the Justices to vacate the “stay” and allow landlords to begin evictions.

A decision by that Court to lift the stay would have required five votes. Justices Alito, Barrett, Gorsuch, and Thomas voted to do so. However, the three liberals (Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor), joined by Chief Justice John Roberts and Justice Brett Kavanaugh, voted against lifting the stay. After this 5-4 vote, the moratorium remained in place. Kavanaugh was the only Justice to explain his vote. In a separate solo opinion, he said he would not vote to block the CDC’s first moratorium when it would expire in a month by its own terms. However, he added: “In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July.”

Kavanaugh’s statement is not the law; it is not a “ruling”; it articulates his personal viewpoint and not a legal holding. The entire case was handled in what has come to be called the Supreme Court’s “shadow docket.” This docket comprises a wide variety of court orders that are not fully briefed and argued, as are cases on the Court’s high-profile “merits docket.” The reasons animating the Court’s shadow orders are frequently left to guesswork—as this one was.

Kavanaugh’s statement, however, is being treated as a legal holding. There is a general assumption that the four Justices who would have lifted the stay can be counted on to overturn any public health policy supported by Democratic progressives—and that Kavanaugh will predictably join them. The conservative Justices have all expressed doubts on occasion about the permissiveness of the nondelegation doctrine in its current state. They are likely to regard the property rights of landlords as also of central concern.

There are, however, at least three problems with treating the Kavanaugh statement as somehow binding on the Biden Administration. One is that the new moratorium, although effective across most of the country, is not fully national, unlike the moratorium about which Kavanaugh spoke. In other words, this is not an “extension” of the previous moratorium—it is more careful in defining the leases and geographic areas it refers to.

The breadth or narrowness of regulations is an important consideration in statutory construction. The refinements could very well affect the Court’s analysis.

The second is that Chief Justice Roberts, himself no slouch in worrying about broad delegation, joined the Court’s liberals in leaving the moratorium in place. If his vote represents his substantive interpretation of the Public Health Act, we shouldn’t assume that, after full briefing and argument, he may not be able to bring one other Justice to his side.

Third, we don’t know the jurisprudential basis for the votes of Justices Alito, Barrett, Gorsuch, and Thomas. They may have a firm view of CDC authority. But they also might have thought more modestly that the legal question is a close one—and that it would thus be unfair to allow the new moratorium to compromise the property rights of landlords.

Defenders of Donald Trump’s Supreme Court nominees—now Justices Gorsuch, Kavanaugh, and Barrett—routinely chastised skeptics for assuming that, as jurists, Trump’s Justices would simply vote a right-wing party line. If that assumption was not to be indulged when those judges were elevated to the Court, it ought not be used now to treat their unexplained votes on procedural motions as binding the Biden Administration on matters of substantive legal interpretation.

What constitutional lawyers could accurately have told President Biden is that the Supreme Court has previously held that not every legal claim challenging a president’s interpretation of statutory authority is of constitutional dimension. Every administration loses some cases in court, and the Biden Administration may lose this one. But every administration makes honest, even if politically convenient mistakes in interpreting the scope of Congress’s frequently ambiguous charges. In this instance, the administration’s position is less “stretchy” than the Bush Administration’s assertion that waterboarding is not torture, the Obama Administration’s claim of authority to remain engaged in Libya under the War Powers Resolution, or the Trump Administration’s claim that the southern border wall could be funded as a “military installation.”

The time to worry is when presidents treat Article II as a constitutional permission slip to bypass Congress or signal their indifference to shoddy or purely tendentious lawyering. Neither happened here.

Peter M. Shane

Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at Ohio State University and a Distinguished Scholar in Residence at the New York University School of Law. His forthcoming book is Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency. Follow Peter on Twitter at @petermshane