I wanted to take note of Megan McArdle’s observations about President Biden’s extension of the moratorium on evictions in her most recent Washington Post column. After considering the health, economic, and legal basis for the extension, each of which she finds weak, she concludes:
Of course, unlike in 2014, we already had a moratorium in place, and its expiration would no doubt bring a wave of evictions. That means real hardship for millions of Americans, which no one wants to see. But this was always going to be the case when the moratorium ended. Cities and states have known this was coming since the various moratoriums were imposed, and they have had more than a year to plan. If they’re not ready to help affected residents into new shelter, they never will be. The only way any of this constitutes an argument for further delay is if you think that the moratorium should never end.
The emphasis is mine. I don’t think that’s entirely fair. Although that is one explanation other explanations could be imagined based on other assumptions. For example, it’s consistent with a “zero COVID” assumption, which I think is far-fetched, at least for the foreseeable future. We drive the number of COVID-19 infections to zero and only then lift the moratorium.
At this point I think the correct policy is to set a date or conditions certain for lifting it as well as gradually tightening the eligibility requirements. While it would be harsh to cancel the moratorium without warning raising the expectation of repeated extensions would be worse.
I think it’s possible that relatively few have my life experience. I’ve actually spoken with people for whom never paying rent was a strategy—they basically stayed one step ahead of eviction over a period of years. You learn things when making dunning calls. Don’t assume everybody is honest. There are a lot of very dishonest people out there.
Her conclusion in which she points out the irony of the situation is worth quoting as well:
I’m old enough to remember when it was a bad thing for presidents to knowingly and blatantly violate their oath to uphold and protect the Constitution of the United States. I’m even old enough to remember a time — lo these seven months ago! — when the left responded to such maneuvers with horror, rather than egging them on.
Which is worse? Doing so because you’re arrogant and invincibly ignorant or doing so knowingly?
I’ve gone back and forth on this and overall finally concluded there is a ton of blame to go around but the majority of it for the moment rests on Justice Kavanaugh who, in his opinion in June, tried to have it both ways by leaving the existing moratorium in place but signaling it isn’t Constitutional and that he would change his vote if it came up again. That was a very political thing to do and gives some evidence to those who think of the Supreme Court as mere politicians in robes.
Now Biden is calling Kavanaugh’s bluff after the administration and Congress did nothing until the last minute. I actually can’t put the majority of the blame on Congress and Pelosi this time – she didn’t have the votes to pass an extension anyway (and it wouldn’t have passed the Senate either).
But who needs legislative action when the Executive can just do it? Biden shopped around for “advisors” who told him what he needed to hear. For all the talk about “saving democracy,” particularly on the left, here we have a President who is doing something he knows will be found unconstitutional, justifying it on the thinnest pretext, which his own legal advisors said wasn’t legal (until they suddenly “decided” that it was), and that didn’t have majority support in either legislature.
And it’s all a great thing, according to some, because what really matters is the short-term result of delaying evictions, which is a noble enough goal to dispense with the process – or so the argument goes.
The stakes here are small – this isn’t the Bush administration ginning up the torture memos or Doug “stupidest guy in government” Feith trolling intelligence databases looking for any evidence for conclusions he’s already formed to justify attacking another country. But it’s still pretty bad, another ratchet in our governmental dysfunction. It’s yet more evidence of the federal government’s inability (along with many state governments) to plan and execute. IMO no one should be cheering unpopular, undemocratic, and likely illegal Presidential actions from a “crisis” that was the direct result of multiple government failures.
Shorter: two wrongs still don’t make a right.
Now in Justice Kavanaugh’s defense, here is his reasoning from June 29.
[…Because the CDC plans to
end the moratorium in only a few weeks, on July 31, and
because those few weeks will allow for additional and more
orderly distribution of the congressionally appropriated
rental assistance funds, I vote at this time to deny the application to vacate the District Court’s stay of its order… In my view, clear and specific congressional authorization (via new legislation) would be
necessary for the CDC to extend the moratorium past July
31].
Kavanaugh stated his ruling was to support the orderly implementation of Congressionally approved spending for rent assistance, not about the politics and the judiciary’s role. He didn’t state he thought what the CDC did was unconstitutional; or that it was beyond the power of the Federal Government — only the action exceeded the powers Congress gave to the CDC.
We will see how political Kavanaugh was when it comes to the Supreme Court again. It will be intense because even the amount of time it takes the Court to address this has significance since Biden signaled dragging out the litigation is one of the goals.
The stakes may have increased with the new order. There are legal experts who think the new action raises the possibility that courts hold the CDC for violating the takings clause and required to provide compensation to landlords.
https://reason.com/volokh/2021/08/03/a-takings-clause-lawsuit-against-the-cdc-eviction-moratorium/
PS: don’t forget to blame the States. They were responsible for disbursing the relief Congress appropriated and it turned out, they did almost nothing in the month that Kavanaugh thought would give an “orderly distribution”.
No one really wants to be responsible for ending the moratorium. Kavanaugh punted and now Biden is punting back. I dont see much sense in keeping it going. Let individual states decide if they want to continue.
Steve
As I read the statistics in terms of distributing the funds appropriated things don’t look particularly good for Team Blue. But I don’t interpret it that way. IMO it’s mostly a big state vs. small state thing. The more populous the state, the more complex the problem of distribution was. That’s why states like New York, Illinois, and California have distributed so little of the funds appropriated.
“IMO it’s mostly a big state vs. small state thing”
Isn’t that an argument for state moratoriums (which are still legal) vs extending the Federal one?
I haven’t followed this very closely, but I think Kavanaugh might have been right. Essentially, the Court was faced with an interim decision that required some action prior to consideration of the merits of the case. Those types of decisions are governed by equitable factors and here siding with the property owners apparently would have ended access to property owners to a government fund. The government could be wrong on the merits, but given the imminent lapse of the program, lifting the stay would have harmed those property owners who could have received compensation in the meantime.
But it would be interesting to know Kavanaugh’s thoughts and whether he would do the same in retrospect.
If the program violates the taking clause, then every landlord in the country has an individual action against the government. This is the pragmatic issue that I think lawyers advising government would hone in on. Are the US attorneys’ offices prepared to litigate all of the leaseholds in the country?
Curious,
I think Kavanaugh’s argument is completely reasonable for a policymaker. But that’s not his role. On one hand, he’s saying the CDC is exceeding its authority, but then he turns around and rules that’s ok because of some arbitrary political and policy circumstances. I don’t think judges – especially on the Supreme Court, ought to to do that.
Not much to add, except that I agree with Andy’s reasoning on this one.
I tend to agree with that. That is a position the SCOTUS has been placed in for quite a while and there’s a risk of its becoming a bad habit.
I suspect the National Review had it correct, if Kavanaugh believed the CDC exceeded its lawful powers but wanted an orderly winddown, he could have issued a stay that became effective on July 31; instead of issuing semi-dicta.
I suspect this brief is the key to what happened.
https://www.supremecourt.gov/DocketPDF/20/20A169/182531/20210624160206672_letter%2020A169.pdf
In the brief 3 days before the decision, the solicitor general made the following representation.
“Although this Order is subject to revision based on the changing public health landscape, absent an unexpected change in the trajectory of the pandemic, CDC does not plan to extend the Order
further.â€
There’s an argument it is bad practice for justices to consider heavily what Government represents it will do — but it is the practice. The NSA mass surveillance is predicated on the courts accepting the Government will do exactly what it states it will do in statements before the court.
Kavanaugh got his lesson. This Government can’t be trusted to follow through on its promises to the court, and he’s gotten most of the blame (as this thread has shown). He’s left with two choices, let the Government steam-roll him with actions that exceed the law; or call it as it is and accept the blame.
Given the howl’s for “balancing the court”; the fact that many of the emergency actions to “battle” COVID exceed what is allowed by law; prepare for fireworks.
Or, Kavanaugh could have just voted and kept his mouth shut, like all of his colleagues did. No one else issued an opinion on this, but Kavanaugh did.
That may be another lesson Kavanaugh learns.