Last week, a federal court did something that would seem not just counterintuitive but impossible under our legal system: it upheld an agency order despite the clear lack of authority to issue it. The order – to renew a moratorium on evictions – is a constitutional zombie that is neither alive nor dead. Yet it still walks the land.
I was critical of Justice Brett Kavanaugh’s baffling concurrence recently in the preserving the Centers for Disease Control and Prevention (CDC) order for a nationwide moratorium on the eviction of renters during the pandemic. He did so despite agreeing with four of his colleagues that the CDC never had the authority for the moratorium. Instead of declaring it invalid, he preferred to let it die naturally in a matter of days when the deadline passed. That allowed President Joe Biden to declare that the CDC could reinstate the moratorium, even though he was told by his White House counsel and most experts (except Professor Laurence Tribe) that such a renewal would unconstitutional. Now this bizarre status of the undead moratorium has continued with a trial judge who first declared the CDC lacks authority to impose a new moratorium and then upheld that moratorium.
In Alabama Association of Realtors v. Department of Health and Human Services, the Supreme Court issued a 5-4 decision that kept the CDC moratorium in place despite five justices stating that the CDC order as unconstitutional. In dissent, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett wanted to suspend the eviction moratorium as unconstitutional. Justice Kavanaugh however saw no need to strike down the order since it was about to expire. He left no question that the CDC never had the authority for the order, expressly stating that the CDC “the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium.”
Thus, a majority of the Court made clear that, without a congressional act, the CDC lacks the authority to issue such an order. Yet, Kavanaugh supplied the fifth vote in favor of the CDC to allow the law to simply expire and thereby enable an “additional and more orderly distribution of the congressionally appropriated rental assistance.”
District Judge Dabney Friedrich of the United States District Court for the District of Columbia rejected a challenge by landlords to the new moratorium. In May, Judge Friedrich ruled the previous version of the moratorium was unlawful. She noted that the new order suffered from the same unlawful foundation. However, in the Friday decision, Friedrich basically blamed Kavanaugh for creating a mess of the controlling precedent with his much ridiculed concurrence:
These intervening decisions call into question the D.C. Circuit’s conclusion that the CDC is likely to succeed on the merits. For that reason, absent the D.C. Circuit’s judgment, this Court would vacate the stay. But the Court’s hands are tied. The Supreme Court did not issue a controlling opinion in this case, and circuit precedent provides that the votes of dissenting Justices may not be combined with that of a concurring Justice to create binding law.
In other words, a higher court will need to clean this up given the earlier decision of the D.C. Circuit and Kavanaugh’s judicial punt. However, it is not the victory that many have suggested. Friedrich is adhering to a strict view of the controlling precedent since the D.C. Circuit decision is technically still alive on the books.
Kavanaugh allowed an interpretation to continue despite being clearly but not finally declared unlawful. I have long been a critic of such unchecked and undefined authority in pandemics. This, however, would be a breathtaking claim of authority. It would give the CDC authority that is both unilateral and largely unlimited over our very economy. The CDC would have carte blanche “make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.” Thus, even the danger of the “introduction” or spread of a disease would allow the CDC impose sweeping economic and legal changes in our country.
The Framers struggled with the very concept of a centralized federal government. Many like George Mason were uneasy with such authority but the Framers expressly limited the federal authority while protecting the authority of the states. The Constitution’s overriding principle is the denial of the concentration of authority in any one branch or individual. James Madison warned in Federalist 47 that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Yet, in this matter, a small agency is given authority over the economic conditions and contracts in every state based on its judgment of not simply public health but economic policies.
The protectors of this constitutional balance of power is supposed to be the courts. However, the courts have now expressly allowed an unconstitutional claim of authority to be exercised due to the anomaly created by Justice Kavanaugh. It is precisely what John Adams warned out when he wrote in 1787 that “The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.”
The result in this case is something that few lawyers or law students would expect to see in their lifetime. We have the bizarre sight of an unconstitutional order being upheld despite a majority of justices (and the district court judge) declaring it as facially unlawful. That is what comes when justices decide that their job is to reach convenient rather than constitutional results.