For months, millions of Americans, behind on their rent, have been living in legal limbo. This spring, a court struck down the nationwide eviction moratorium adopted by the Trump administration last September, ruling that the Centers for Disease Control and Prevention had overstepped its statutory authority. The case was appealed, and five justices of the Supreme Court signaled that they agreed with the lower court, but one of the five, Brett Kavanaugh, voted to allow the eviction freeze to stand — only because it was set to expire just a few weeks later, on July 31.
Justice Kavanaugh’s opinion was just three sentences long, but it set Democrats, who hoped to extend the Trump eviction moratorium, on a collision course with the Supreme Court. When July 31 came and the moratorium expired, the Biden administration, after first suggesting that the court had tied its hands, ended up issuing a regulation that, unlike the earlier nationwide freeze, applies only to areas of the country “experiencing substantial and high levels of community transmission” of the virus. President Biden cautioned, however, that the courts might strike it down. Asked whether it would pass constitutional muster, he admitted to reporters on Tuesday, “I can’t tell you. I don’t know.” He said that the bulk of constitutional experts who were consulted believed it would be overturned.
Ordinarily, elected officials should not adopt laws or regulations that they predict will be struck down. They take an oath to support and defend the Constitution. But the Biden administration had valid reasons to issue its eviction moratorium. For one, the justices were wrong about the earlier ban. Congress explicitly gave the C.D.C. and the secretary of health and human services authority to make and enforce regulations that they deem “necessary to prevent the introduction, transmission or spread of communicable diseases.” Moreover, the Biden administration’s moratorium differs from Trump’s in ways that matter, further muddying the constitutional picture.
By law, the C.D.C. has a broad mandate designed for situations like a pandemic, in which public health authorities need to respond quickly to protect human health. That is exactly what the eviction moratoriums have done: They have helped prevent the spread of Covid by reducing the influx of people into already overcrowded homeless shelters. The moratoriums have also prevented families from being forced to move in with relatives or friends, thereby creating conditions for easy transmission. It is estimated that the earlier moratorium, along with similar state moratoriums, may have prevented the eviction of up to 40 million people who were behind on rent.
That five justices may have gotten it wrong the first time around does not itself provide a sufficient basis for issuing a different version of the same moratorium. But the new moratorium is different from its predecessor in crucial ways that may help it survive if it is challenged in the courts. The new moratorium is restricted to areas where transmission concerns are at their highest; the earlier version was far more sweeping, applying even in counties with low rates of Covid, where at least arguably the ban was not necessary to prevent spread of the virus. The new freeze is also limited in duration, expiring in two months, whereas the earlier moratorium lasted almost 11 months and covered periods when transmission was declining, not rising.
Will those distinctions be enough to save the new moratorium from the Supreme Court? It is impossible to know for sure, in large part because the earlier ruling came off what is known as the court’s shadow docket. Unlike run-of-the-mill Supreme Court cases, shadow docket cases are usually decided after only limited briefing, without oral argument and often without a majority opinion explaining the court’s reasoning. In the case involving the Trump administration’s eviction moratorium, none of the justices offered any explanation of their decision, save for Justice Kavanaugh. His three-sentence opinion offered little more than a conclusory statement that he agreed with the lower court that the C.D.C. exceeded its authority.
If the justices are going to call into question an important, lifesaving measure such as an eviction moratorium in the midst of a deadly pandemic, they owe the nation more of an explanation. They had an obligation to articulate what was wrong with the regulation so that officials could seek other, more clearly lawful ways of preventing the spread of Covid. Instead, they left the C.D.C., charged by Congress with taking action to limit infectious disease, adrift in a sea of legal uncertainty.
By deciding the fate of the eviction moratorium off the shadow docket and without any stated reasons, the justices failed to do their job. That shouldn’t stop the C.D.C. and the Biden administration from doing theirs.
Adam Winkler (@adamwinkler), a professor of law at U.C.L.A., is the author, most recently, of “We the Corporations: How American Businesses Won Their Civil Rights.”
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