- Action #1: Thank Biden for jumping in head-first, despite all his legal advice.
- Action #2: Tell your representative to get back to Congress and pass H.R. 4791, the “Protecting Renters from Evictions Act, of 2021.
- Action #3: Thank Rep. Cori Bush!
The various judgements against the CDC’s moratorium by Trump appointees in lower courts and the temporary reprieve by our GOP-dominated Supreme Court signals a far more dangerous fight, i.e. the weaponization of the “nondelegation doctrine” against what far-right conservatives call “the administrative state.”
Action #1: Thank Biden for jumping in head-first, despite all his legal advice. It’s time he expanded SCOTUS.
Sample script: Thank you for extending the eviction moratorium through Oct. 3rd. Your struggle to do this highlights a serious legal issue.
42 U.S. Code § 264 charges the Secretary of Health & Human Services to prevent the spread of communicable diseases by a number of methods, including access to sanitation, “and other measures, as in his judgment may be necessary.”
However, conservative jurists are using the pandemic to attack administrative agencies with what the Constitutional Accountability Center calls “fauxriginalism —an incomplete and inaccurate reading of the text and history of the Constitution that leads to conservative outcomes.“ The eviction moratorium is, as Trump-appointee Judge Amul Thapar (Tiger Lily, LLC v. HUD) stated, an opportunity to “breath[e] new life” into the nondelegation doctrine” —a move that would not only be at odds with constitutional text and history, but also undermine the ability of the federal government to function effectively.“ This destructive philosophy is shared by Trump-appointee U.S. District Judge Dabney Friedrich and the Supreme Court majority, who would have us to believe specific legislation is required to allow the CDC to do its job.
“By the time Congress reached an agreement, thousands of low-income individuals might have already been forced out of their homes and perhaps even died of COVID-19. Administrative agencies, particularly those with highly technical expertise like the CDC, avoid that result with their quick actions in response to emergency situations. But conservatives’ attempts to tie agencies’ hands with a stringent and a historical limit on Congress’s authority to delegate are not about accountability; they are about defeating the power of agencies to implement key progressive policies by exercising the authority that Congress has already given them.”
Action #2: Tell your representative to get back to Congress and pass H.R. 4791, the “Protecting Renters from Evictions Act, of 2021.
The bill specifically states that the Centers for Disease Control and Prevention (CDC) under section 361 of the Public Health Service Act (42 U.S.C. 264), entitled “Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID–19” is extended through December 31, 2021. We’d actually like it to go further and affirm that the CDC always has the power to protect our citizens, whether or not the two houses can push through a vote.
Minimal script: I’m calling from [zip code] and I want Rep. [___] to vote “YES” on HR 4791 – the “Protecting Renters from Evictions Act of 2021. But we’re tired of cliffhangers with right-wing anti-delegation judges. The bill should also simply AFFIRM the CDC’s legal authority, under 42 U.S. Code § 264, to effect “other measures, as in his judgment may be necessary” to stop the spread of communicable diseases. The open-ended language was specifically included to allow for possibilities not imagined by the original authors, which now includes eviction moratoriums. This apparently needs to be spelled out for the GOP.
I also want Rep. [___] to know I strongly support Rep. James E. Clyburn’s investigation of landlord companies who failed to comply with eviction moratoria or refused to cooperate with rental assistance programs, creating significant hardship for tenants affected by the coronavirus crisis and contributing to a needless housing crisis as our nation recovers from the pandemic and its economic fallout.
Rep-check here. Carbajal has signed on – thank him. Brownley hasn’t yet. Give her a call.
- Rep. Julia Brownley (CA-26): email, DC (202) 225-5811, Oxnard (805) 379-1779, T.O. (805) 379-1779
- or Rep. Salud Carbajal(CA-24): email. DC (202) 225-3601, SB (805) 730-1710 SLO (805) 546-8348
- Who is my representative/senator?: https://whoismyrepresentative.com
Action #3: Thank Rep. Cori Bush.
Minimal script: I’m calling from [city,state] to thank Rep. Cori Bush for her peaceful but impactful protest on the steps of our nation’s capitol. Her actions forced a national reckoning on this issue and made a president braver. She undoubtedly saved people’s lives during this pandemic, and spared untold numbers of children from the humiliation and lasting trauma of sudden homelessness.
Rep. Cori Bush (MO -01): DC (202 225-2405, St. Louis (314) 955-9980
History of the Eviction Crisis
“42 U.S.C. § 264(a) Promulgation and enforcement by Surgeon General
The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment 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. For purposes of carrying out and enforcing suchregulations, the Surgeon General 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.”
Researchers from Johns Hopkins and UCLA published a paper in November which found, “Lifting eviction moratoriums was associated with increased COVID-19 incidence and mortality, supporting the public health rationale for use of eviction moratoriums to prevent the spread of COVID-19.”
- Congress passed its first eviction ban in March 2020, explicitly prohibiting landlords from kicking out tenants who could not afford rent because of the pandemic.
- After this provision expired that August, Donald Trump issued an executive order asking the CDC to take action.
- The CDC responded in September with its own eviction moratorium set to run through the end of 2020. It was rooted in a federal law that allows the agency “to make and enforce such regulations” that are “necessary to prevent” the “spread of communicable diseases” between states.
- In December, Congress passed legislation that explicitly extended the CDC’s moratorium through Jan. 31, 2021. The agency then extended the ban several more times.
- While the CDC kept the moratorium in place, a group of landlords sued to block it, claiming it exceeded the agency’s authority.
- Now begins the GOP attack on the “administrative state,” represented by the CDC.
- March 31, a Sixth Circuit judge sided with plaintiffs in Tiger Lily, LLC v. HUD. Judge Amul Thapar, another Trump-appointed Federalist Society judge,urged the Supreme Court to “breath[e] new life” into the nondelegation doctrine—a move that would not only be at odds with constitutional text and history, but also undermine the ability of the federal government to function effectively.
- May 5, U.S. District Judge Dabney Friedrich, a Trump-appointed judge, sided with the plaintiffs (Alabama Association of Realtors) against the ban but stayed her order, claiming that the eviction ban “is the role of the political branches, and not the courts.
- June 2, the U.S. Court of Appeals for the District of Columbia Circuit court refused to block the ban for Tiger Lily, LLC v. HUD. Millett, Pillard, and Wilkins, Circuit Judges, were NOT appointed by Trump.
- The realtors then appealed to SCOTUS,asking the court to vacate the stay and end the moratorium. Five justices—Clarence Thomas, Sam Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—believed it violated the law. Kavanaugh, (who used to date Dabney Friedrich), voted with Roberts and the three liberal judges, but wrote separately to explain that although he believed the CDC had “exceeded its existing statutory authority,” he would not invalidate the ban. Instead, weighing the “balance of equities,” he would allow it to remain for “a few weeks.”
- Kavanaugh then stated that a “clear and specific authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31,” which was not the issue before the court, i.e. “vacate the stay ” and therefore is not binding. When a judge, as Kavanaugh did in this case, expresses views beyond the issues presented in the case it is known as “dicta” and is not binding.
- Biden issued a statement that he would have “strongly supported a decision by the Centers for Disease Control and Prevention (CDC) to further extend its eviction moratorium to protect renters at this moment of heightened vulnerability. Unfortunately, the Supreme Court declared on June 29th that the CDC could not grant such an extension without “clear and specific congressional authorization (via new legislation).”
- House lawmakers on Friday failed to pass a bill to extend the moratorium even a few months. Some Democrats had wanted it extended until the end of the year. Republican Representative Patrick McHenry, who has called the moratorium unconstitutional, blocked their call for unanimous consent.
Why the Courts are wrong.
- Through 42 U.S.C. § 264(a), Congress authorized the CDC to implement measures deemed “necessary” for purposes of “prevent[ing] the introduction, transmission, or spread of communicable diseases.” This broad but clearly defined delegation of authority is consistent with Supreme Court precedent, including prior cases upholding delegations of legislative authority for purposes of protecting the “public health,” as well as constitutional text and history, which demonstrate that the Constitution empowers the federal government, including administrative agencies, to provide flexible and, when necessary, robust responses to a wide range of scenarios.
- A case summary from the Constitutional Acountability Center explained why the CDC’s purview does not constitute an impermissible delegation of legislative authority.
- Here are a few examples, all drawn from the First Congress, which sat from 1789 to 1791:
- delegated authority to the executive branch to address the national debt, one of the chief crises in the wake of the Revolutionary War.
- delegated broad legislative authority to the equivalent of a massive modern-day administrative agency to levy a direct tax on property.
- Congress readopted the Northwest Ordinance, which gave to the appointed governor of the Northwest Territory and three federal judges the power to issue the territory’s entire civil and criminal code “as may be necessary and best suited to the circumstances of the district,” with no other guidance whatsoever.
- To foster industrial innovation, Congress adopted a patent law giving the secretary of state, the secretary of war, and the attorney general the power to grant patents to new inventions whenever they “deem the invention or discovery sufficiently useful or important.”
- Congress forbade trade or intercourse with American Indian tribes without a license—and required all licensees to be “governed … by such rules and regulations as the President shall prescribe.”
- Lateer – in 1796, Congress empowered the President to aid in the execution of quarantines and state health laws in order to address a series of deadly yellow fever epidemics.
- Here are a few examples, all drawn from the First Congress, which sat from 1789 to 1791:
- Crucially, when Congress chose to extend the moratorium, it simply passed a law extending the CDC’s own ban. By doing so, lawmakers chose “to embrace” the agency’s action and “expressly recognized” that it had the authority to issue the ban, in the words of the D.C. Circuit. Congress would not have extended the CDC’s moratorium if it did not believe the CDC had authority to issue it.
Why the current Supreme Court is dangerous to democracy
- Many states can only pass new voter suppression laws because the Supreme Court gutted the Voting Rights Act in 2013.
- The Supreme Court kneecapped Obamacare’s Medicaid expansion, allowing states to opt out.
- The crackdown on racial minorities’ access to the ballot in Georgia and the sky-high rates of uninsured Americans in Texas are the predictable consequences of judicial interference with democratically enacted legislation.
- The non-delegation doctrine is based on false premises and would gut our government.There are eight arguments against the traditional nondelegation doctrine and in favor of delegation:
- The Constitution does not explicitly forbid delegating legislative power
- Rulemaking is not the same as lawmakingThe U.S. Supreme Court has upheld virtually every statute challenged on nondelegation grounds
- Agency law rules permit delegation
- The increasing complexity of society requires Congress to delegate to do its job
- Allowing executive agencies to exercise the discretion legislative delegation confers lets them adjust to unintended consequences (unlike Article I strictures)
- Advocates of the nondelegation doctrine actually oppose expansive federal regulations
- Statutes giving open-ended authority to executive or judicial actors are not delegations
- (Wapo – no paywall) The eviction moratorium has ended. Here’s what renters need to know.
- (Slate) The Supreme Court Caused the Looming Eviction Disaster. Why Won’t Democrats Say So?
- (atlantic) There’s No Historical Justification for One of the Most Dangerous Ideas in American Law – The Founders didn’t believe that broad delegations of legislative power violated the Constitution, but conservative originalists keep insisting otherwise.
- (theusconstitution.org) Originalism, Fauxriginalism, and Embracing the Constitution
- (theusconstitution.org) Originalism Watch, Sixth Circuit Edition Part II: Judge Thapar Calls for the Supreme Court to “Breath[e] New Life” Into the Nondelegation Doctrine
- (theusconstitution.org) Tiger Lily, LLC v. U.S. Department of Housing and Urban Development: In Tiger Lily, LLC v. U.S. Department of Housing and Urban Development, the U.S. Court of Appeals for the Sixth Circuit is considering whether a federal law permits the CDC to impose a federal eviction moratorium to curb the spread of COVID-19, and if so, whether that law constitutes an unconstitutional delegation of legislative authority.
- (theusconstitution.org) BLOG: Attacks on the Eviction Moratorium Are Attacks on the Administrative State
- (Forbes) Biden Will Reimpose Limits On Evictions After End Of CDC Moratorium
- (Reuters) CDC rebuffs Biden bid to reinstate COVID-19 eviction moratorium
- (Reuters) U.S. lawmakers fail to renew pandemic-related residential eviction ban
- (whitehouse.gov) Statement by Press Secretary Jen Psaki on Eviction Prevention Efforts
- (coronavirus.house.gov) Clyburn To Investigate Pandemic Evictions By Corporate Landlords
- (cnbc) CDC to issue new eviction ban effective through Oct. 3, source says
- (esquire) No Bad Conservative Idea Ever Dies. Comes now the “nondelegation doctrine,” a nonsense legal theory that has new life because Republicans have the votes.
- (Prospect.org) Wait a Minute, Could John Roberts Block All of This? How the Supreme Court might frustrate the effort to use statutory authority to advance a progressive agenda, and why the next president should follow through anyway