Last week, the Supreme Court struck down the Biden Administration’s most recent moratorium on evictions. The decision, along with an anemic federal rental assistance effort, has put millions of people at risk of being removed from their homes. To offer our readers different ways into this important ruling, we asked Amy Kapczynski, Nikolas Bowie, Tara Raghuveer, Katharine Jackson, John Whitlow, Blake Emerson, and Ashraf Ahmed for their initial reactions.
The statute that the CDC relied upon uses very broad language – the first sentence gives them authority to do anything they think “necessary to prevent the introduction, transmission, or spread of communicable diseases” between states or into the US. There’s no doubt that evictions will spread Covid, including across state lines. So why is the ban beyond the agency’s authority? The real reason, it’s clear from the opinion, is that eviction bans implicate something too important – the order of the market, the rights of the landlord. The opinion invokes struggling landlords, and at a critical moment calls the loss of rent payments “irreparable harm” (which, classically, anything that can be remedied by money is not! As opposed to, well, COVID deaths…).
As Lindsay Wiley, a great resource on public health law and COVID, pointed out, the broad statutory language that the CDC drew on for the eviction ban is the same language that the CDC uses to support its mask requirements in interstate travel and cruise ships orders. So can the CDC do THOSE things now? Prof. Wiley notes, rightly I think, that the opinion could permit these other measures because it says that measures are ok if they have a “direct” effect on transmission. It’s of course nonsense that keeping people in their homes isn’t as direct a means to protect us against COVID as mask mandates – but read Lindsay’s post and you’ll see what the Court is doing. (I think they would like to keep mask mandates on planes, because that kind of mandate is a way to uphold business-as-usual).
Notice, however, that there’s nothing about the statute that mentions directness! So, then, they’re 1) making this line up, and 2) the real distinguishing line comes from somewhere else. So, where? The opinion, once you see it this way, is a jewelbox of neoliberal reason: the CDC can’t do an eviction ban because if they could do that, then they could “mandate free grocery delivery to the homes of the sick or vulnerable.” Imagine! They also reference the sanctity of the landlord’s “right to exclude.” The rule here has nothing to do with Congress, and everything to do with the majority’s willful imposition on all of us of rules that have nothing to do with COVID, but are all about their vision of the proper relation between the market and democracy.
Over the past month, strangers on the internet have bombarded first-year law students with advice about the best way to read judicial decisions and learn the law. But one lesson most law students won’t receive in their first-year classes is that reading judicial decisions is only one model—and a flawed one—for understanding what the law is. The federal eviction moratorium teaches this lesson starkly.
One way to understand the law is as the product of organizing. The only reason the moratorium existed in August is because formerly unhoused people like Representative Cori Bush organized friends and colleagues to exercise their collective power. The power they wielded wasn’t simply the power to pass or block future legislation. It was also the power to educate the entire country that a change in federal policy could prevent millions of our neighbors from being violently dispossessed of their homes. It was the power to define our democracy by the solidarity we demonstrate with one another rather than the campaign funding that most politicians would rather spend their Augusts raising. And it was the power to embarrass President Biden by illustrating that he was surrendering to his fear of how the Supreme Court would respond instead of doing everything he could to establish justice as he saw it.
Another way to understand the law is as the product of judicial decisions. Indeed, if law professors teach the eviction moratorium this year, we will likely give students only Alabama Association of Realtors v. HHS to read and discuss. In the classroom, our discussions of equity will be framed by a majority opinion that empathized with landlords of “modest means” but could offer no words to describe the tragedy of parents being forced to tell their children that they will have to live, for now, in a car. And our discussions of property will summon William Blackstone’s “right to exclude” as if it were natural that common-law customs should give landlords the power to dominate tenants’ federally recognized interests in housing security and human dignity.
These contrasting models of law—as the organized product of collective power and as the articulated product of judicial power—complement one another. But as law professors, we do our students a disservice if we pretend that we are teaching the law when we offer our students only judicial decision after judicial decision, neglecting how laws have been demanded and modified by ordinary people organizing to achieve justice. Justice Breyer’s dissent in Alabama is not a substitute for the perspectives of the thousands of people who camped on the steps of the Capitol, and it is our duty as law professors to teach our students that it’s up to all of us, working together, to say what the law should be.
Tenants have known all along that a temporary eviction moratorium would not save us. In March 2020, as the pandemic raged through our country, tenants demanded rent and mortgage cancellation. It would have immediately, automatically, and universally cancelled rent and mortgage obligations. Instead of listening to the needs of those most impacted by the pandemic and the economic fallout that accompanied it, people in power rallied for rental assistance (a no-strings bailout for landlords) and enacted a patchwork of eviction moratorium policies.
Some state and local governments closed eviction courts. Other places never seriously considered such a move. In still other places, like my hometown Kansas City, organizers won temporary eviction protections, but those expired within months of the initial shutdowns. By May, our local courts opened for business as usual, now hearing evictions both in person and by conference call.
The federal eviction moratorium, first enacted in September 2020, was designed to fail. It required tenants to complete a declaration form in order to gain protection. The moratorium did not apply to every eviction, just those related to rent. Instead of improving the Trump-era policy, the Biden administration simply extended it. So landlords identified and exploited loopholes, evicting tenants for sham “lease violations” and for possession of the property. Judges across the country kept courts open, heard evictions, and issued judgments. Tenants, understandably confused by the arbitrary expiration dates and the eleventh-hour theatrics each time the CDC extended the moratorium, often had no idea what, if any, protections existed.
The recent SCOTUS decision, after months of well-funded legal attacks by profiteers like the National Association of Realtors, comes as no surprise, but it does essentially zero-out federal tenant protections. At a time when COVID cases are on the rise across the country, this will come at the cost of human life. For what? The conservative justices said the quiet part out loud: “Preventing [landlords] from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership—the right to exclude.” Property over people, profits over public health.
Every eviction is an act of violence. Tenants need Congress to legislate a real eviction moratorium. But ultimately, we need so much more. We need systemic shifts in the balance of power between landlords and tenants. We need a world that guarantees housing as a public good instead of treating it as a commodity. Death to incrementalism; incrementalism is a death sentence to poor and working-class people who are already struggling to survive.
Whatever law the Court thought it was enforcing in Alabama Association of Realtors v. Department of Health and Human Services, it wasn’t a democratic one. Painting the CDC’s eviction moratorium as a “breathtaking” dictatorial overreach of power, the Court speculated on what Congress must have intended in 1944 when it first tasked the CDC with the management of public health emergencies. The problem with the Court’s approach is that this “breathtaking overreach” was clearly endorsed by today’s 117th Congress CARES Act.
To be sure, the Court makes a lot of hay from the Act’s sunset clause. Congress, they venture, must have specifically intended this deadline – and felt strongly about it. So strongly that, when the CDC extended it, the CDC flagrantly flouted the will of the people.
Such an argument, however, relies on a misguided transmission-belt theory of legislative primacy. This theory holds that voter preferences are translated and cleanly aggregated first through elections and again through members of congress who — despite all the negotiation, compromise, logrolling, checks and balances — articulate the will of the people as a single, coherent intention. Afterwards, agencies are supposed to apply that will mechanically and without controversy. According to this line of reasoning, the CARES Act reflects the final will of the people, and agencies like the CDC have no choice but it apply this sovereign will as straightforwardly as possible, never stepping out of bounds to exercise any discretion.
In reality, democratic conversations happen in long, unwieldy negotiations across time and space. Politicians shape voter preferences, and voter preferences shape political campaign promises. Congress reacts to agency policies, and agency policies react to congressional lawmaking. All three respond to, and shape, the media and the public conversation. At no point in the lawmaking process can we take a snapshot and decide that we have, at last, found the true “will of the people.” Democracy is a never-ending endogenous dialogue with a broad subject matter jurisdiction.
In this particular democratic dialogue, the CDC had long ago been granted a lot of discretion that included the power to quarantine – a drastic limitation on personal freedom. Further, last winter, Congress did not “impose,” de novo, an eviction moratorium. Instead, it specifically endorsed its use by the CDC as a proper means to battle a pandemic. When the CDC extended the moratorium again, Congress could have stepped in the CDC’s way – but did not. Indeed, the extension itself came at the urging of Congress members themselves. The existence and status of the mortarium, then, is a perfect example of the democratic dialogue at work: call and response. It is the institutionalized output of public reason that is responding, despite its unwieldy and cumbersome bulk, to an emergency as fast as it can. By striking down the eviction moratorium, the Court is not preventing executive overreach, but rather undermining responsible, effective, and compassionate democratic government.
When I was teaching at a law school clinic in New Mexico, a colleague referred to the local housing court there as an eviction machine – it was a foregone conclusion that, regardless of the facts or relevant law, landlords would prevail and tenants would receive no justice. Last week, the United States Supreme Court showed that it too is an eviction machine, albeit on an exponentially larger scale.
Putting aside the shakiness of the Court’s legal rationale, the most troubling dimension of this ruling is that it confirms what we already knew: this is a Court that invisiblizes – and in so doing intensifies – the day-to-day struggles of poor and working people, who find themselves adrift in a neoliberal hellscape, scraping to get by against increasingly insurmountable odds; and, relatedly, the Court is a brazenly antidemocratic institution and an instrument for minoritarian rule – so much so that its entreaty for congressional action on the impending eviction crisis, tacked on at the end of the very ruling that pours gasoline on the fire, lands as a barbed provocation.
If there is any silver lining to this decision, perhaps it will accelerate the recognition that the Supreme Court is and always has been a political body masquerading as something else, and that its considerable power is an obstacle to building a more just, equal, and democratic society.
As an administrative law scholar, the aspects of the eviction moratorium decision I’d emphasize are the Court’s quite loose adherence to textualism and its reliance on the major questions doctrine.
On its face, the statute underlying the moratorium appears to give very broad authority to the Surgeon General, which has been delegated to the Director of the Centers for Disease Control (CDC). The statute authorizes the Director to “make and enforce such regulations as in [her] judgment are necessary to prevent the introduction, transmission, or spread of communicable disease.” There are reasonable disagreements about whether the statute in fact permits a ban on evictions, which concern whether the sentence that follows constrains this broad grant. But the Court, in its rush to judgment, does not give the arguments on either side, or the text itself, nearly the attention they deserve. After a casual survey, with only a paragraph of sketchy textual analysis filled in with Commerce Clause skepticism, the Court summarily concludes, “it is a stretch to maintain that [the statute] gives the CDC the authority to impose this eviction moratorium.”
Perhaps recognizing that its engagement with Congress’s words was sorely lacking, the Court relies on the major questions doctrine to narrow the CDC’s authority: “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” This so-called “major questions doctrine” is only about 20 years old. It’s a canon of constitutional avoidance that purports to avoid nondelegation problems that would arise if a statute gave too much discretion to the Executive Branch. Until a few years ago, however, the nondelegation doctrine itself seemed dead and buried. Now the Court seems keen to revive it, either directly, by striking down federal statutes as granting too much policy discretion to executive or, as here, by reading statutes more narrowly than the text would otherwise require in order limit administrative power. And the major questions doctrine keeps evolving. In its current form—an innovation of Justice Kavanaugh—it seems to require that Congress explicitly state in advance any important means an agency might use to accomplish legislative goals. This interpretive presumption is likely to pose serious problems for legislative drafting and administrative action on other pressing issues, particularly climate change.
Together, major questions and the disinterred nondelegation doctrine are representative of a significant trend on the high Court: curtailing the potential breadth of legislative policymaking and reducing administrative discretion when it comes to economic, social, and public health regulation. Those are trends that are certain to continue in the years to come.
When the Supreme Court harms poor people, it usually does not tell on itself. Instead, the Justices do it gradually, moving the law inch by inch before delivering a final blow that seems compelled by precedent only if you forget they had been making precedent all along. It’s rare, then, to see the Court just come out and declare who matters and who doesn’t. Ironically, in its decision to lift the eviction moratorium, the Court’s candor was a product of the legal formalism at issue: the test for a judicial stay.
That test has four parts: (1) an analysis of the legal merits; (2) irreparable harm to the plaintiff; (3) harm to the other parties; (4) the public interest. When the Court applied the test to the first eviction moratorium, it refused to vacate the stay. This time, facing the same legal question, the Court didn’t. What changed? Apparently, the harm to landlords and the public interest. According to the Court, we now live in a world where vaccination and rental-assistance “had improved, while the harm to landlords had continued to increase.” The Court manages to side with the landlords, despite noting that between “6 and 17 million tenants are at risk of eviction.” For the Court, “the equities had shifted” in the landlord’s favor.
Of course, the dissenters saw things differently. Justice Breyer pointed out the ghastly surge in the Delta variant and the public health risks of putting millions out of their homes. But even in a world without Delta variant, it takes a particular worldview to weigh the landlords’ interest so heavily. It takes a worldview in which property rights, and in particular “the right to exclude,” are seen as singularly important. That worldview requires seeing the country as a republic of rentiers, not renters.