Today was a great day for the Centers for Disease Control’s moratorium on evictions! First, the CDC extended the moratorium until June 30th (I wrote about this development here). Then the U.S. Court of Appeals for the Sixth Circuit issued the first appeals court ruling in the legal battle over the legality of the moratorium. In Tiger Lilly, LLC v. Department of Housing and Urban Development, a court ruling found the moratorium to be illegal was upheld. The reasoning of the Sixth Circle is similar to that of the court in the same case and that of one of the two previous decisions of the District Court against the moratorium. Here is the key part of the opinion:
To slow the transmission of disease, the HHS secretary and the CDC may, more broadly, impose specific restrictions on both property interests (see 42 USC § 264 (a)) and freedom interests (see ID). Section 264 (d). With respect to the former, the Secretary may “provide for such inspection, fumigation, disinfection, sanitation, pest control, destruction of animals or objects found to be infected or contaminated to constitute a dangerous infection to humans, and other measures. ” as may be necessary in his judgment. “I would. Section 264 (a). The government claims a nationwide eviction moratorium is among the” other disease control measures “that Congress envisaged when drafting the statute.
We disagree. This type of collective determination is guaranteed at the end of a list of certain itemsts Application of the same kindCanon that says “where common words specifically follow Words in a legal enumeration, the general words are to be interpreted in such a way that they only include objects similar to the objects listed in the previous informationfic words. ” Circuit City Stores, Inc. v Adams532, US 105,114– –15 (2001) (citation omitted). The remainder of the phrase in § 264 (a) is controlled and defined “with reference to the categories enumerated...before,” I would. at the 115 so that the “other measurementit “the law provides for measures such as” inspection, Fumigation, Disinfection, Hygiene, Pest Control “and so on, 42 USC Section 264 (a). Government intrusion into property to disinfect and dispose of infected materials is different in naturere from an eviction moratorium. See Terkel v. CDC6:20– –curriculum vitae– –00564, 2021 WL 742877, at * 6 (ED Tex. February 25, 2021) (Finding that the Halt Order has exceeded the scope of the CDC Authority and the observation that “eviction is basically the justification of of the owner Interest in possession “). The Halt Order therefore does not fall within the scope of the law.
Like the two District Court judgments, the Sixth Circuit stresses that government interpretation of the Statute would raise serious constitutional problems as it would violate constraints on Congress’ ability to delegate power to the executive:
As the District Court found, the government proposes the broad interpretation of Section 264 elevated…. Legislative delegation concerns Power to the exeSkin branch. The government would let us interpret the term “and others” Measures as may be required in his judgment, “42 USC § 264, as” broad authority ” impose any number of regulatory measures provided that the Secretary considers that: actions will be help prevent the spread of diseases, whether or not they are related in any way to the disease “Specific interference in private property as described in the second sentence” of Section 264. “In the The lack of a clear mandate in the law is inappropriateWe assume that this is what Congress intended Give the secretary unprecedented power of “this kind.” Indus. Union Dep’t, AFL– –CIO v. FIRE, 448, US 607,645 (1980) (plural opinion). We’re not going to do this unreasonable Adoption.
I’ve been beating the drum on this non-delegation issue since my very first comment on the eviction moratorium when it was first issued by the Trump administration in September 2020. Many federal judges appear to have the same reservations.
The Sixth Circuit also concludes that the government’s interpretation of the law violates the rule that courts should not interpret federal law to usurp traditional areas of state governance unless Congress has its will clearly stated:
[E]ven, if we were inclined to interpret the term “other measures” as expansive as the government suggests, we cannot read the public H.Grant ealth Service Act the CDC the power to blend in with the landlord– –Tenant relationship without a clear clear textual evidence of the intention of Congress to do so. Regulation of the landlord– –Tenant Relationship is historically the province of the states…. It is an “ordinary rule of legal construction which, if Congress intends to change that It has to be the usual constitutional balance between the states and the federal government Intention to make this unmistakably clear in the language of the Statute. ” will v. Me. Dep’t of State police491, US 58, 65 (1989) (quotation marks and quotation omitted) … There is No “unmistakably clear” language in public health law indicating the intent of Congress to penetrate the traditionally state– –operated arena of the landlord– –Tenant relationship.
Technically, today’s decision is not a final decision on the matter. It merely rejects the Federal Government’s application to uphold the decision of the local court until the appeal proceedings have been concluded. One of the criteria for granting residence, however, is the appeals court’s assessment of the likelihood that the moving party will prevail on the matter. For the reasons discussed above, the Sixth Circle Panel concluded that the government had little or no chance of getting its way, and for this reason it rejected the request for suspension. So today’s decision is almost certainly a preview of what the panel will complete when it decides on merits (likely sometime in the next few weeks).
Like the court, the Sixth Circle decision also assesses the legality of Biden’s initial revival of Trump’s first-ever moratorium. Today’s additional extension of the moratorium or the additional justifications offered by the CDC in its extension order are not taken into account. It is possible for the Sixth Circuit to come to a different conclusion when it makes its final decision on the matter and has the opportunity to review the latest version of the order. However, for reasons that I explained in my post on renewal today, I think it is unlikely that the courts will see the legal rationale for a new renewal as stronger than the old one. We may soon see if I’m right or not.
In total, we now have four judgments against the eviction moratorium (including the first appeal court decision) and two in its favor. I’ve analyzed the previous decisions here, here, and here.
It is perhaps worth noting that all three Sixth Circle judges are Republican candidates, as are all three lower court judges who ruled against the moratorium. A GOP appointee and a Democrat decided in favor of the government. Hence, it is still possible that we will ultimately see an ideological split on this issue, even though the eviction order was first passed by the Trump administration. For reasons that I have outlined here and here, Liberal Democrats have good reason to be as skeptical of the legality of this order as Conservative Republicans. But liberal judges may not see it that way.
Be that as it may, it is at least clear that the moratorium case has legs. Several federal courts have since ruled against it. And the judges who made those decisions are not easily dismissed as incompetent or insane extremists. One of the judges on today’s Sixth Circuit Panel is Amul Thapar, a major figure in conservative legal circles who is often seen as a potential Supreme Court candidate. The fact that he believes the moratorium is illegal does not prove that it actually is. However, it shows that the arguments against the moratorium cannot simply be rejected.
NOTE: Plaintiffs in some eviction moratorium lawsuits are represented by the Pacific Legal Foundation, where my wife works. I myself played a minor (unpaid) role in advising PLF in this litigation.