After laying dormant for nearly eight weeks on this topic, the broken toy monkey of the Supreme Court of the United States (SCOTUS) just jumped back to life and smacked its cymbals, telling the Centers for Disease Control to end its “eviction moratorium” that the Court majority already “kinda” found unconstitutional, but did not order stopped, on June 29.
The ruling came over the case “Alabama Association of Realtors, et al. v. Department of Health and Human Services, et al.” and it offers a powerful primer on how the federal government is supposed to work, how it doesn’t conform to those rules, and how multitudes assume that this is perfectly fine.
We begin with the “obligatory leftist tilt” on the story, as Associated Press reporter Mark Sherman focuses on not just the decision, but on the “conservative” majority.
The Supreme Court's conservative majority is allowing evictions to resume across the United States, blocking the Biden administration from enforcing a temporary ban that was put in place because of the coronavirus pandemic.
See how that shading works? The implication being that the “conservative majority” is allowing a wrong to be committed against victims of the “pandemic.”
And the renters are described as victims of the “pandemic,” rather than the more precise: victims of authoritarian government lockdowns that destroyed businesses, and breached half of the Bill of Rights and the Contract Clause of the Constitution.
Readers might recall that on June 29, the SCOTUS offered an opinion on this issue, but, although the majority held that the CDC had no “statutory power” to threaten landlords into submission, so-called “conservative” Justice Brett Kavanaugh declined to “order” the CDC from ending its bizarre moratorium.
As Gravel2Gravel reported shortly thereafter, Kavanaugh agreed “on the facts” with four of the five lower courts that had heard these eviction moratorium cases. He agreed that the CDC ban was contrary to any “statutory authority,” but he held off backing a ‘cease and desist’ order from the US District Court of the District of Columbia to tell the CDC to stop hassling the property owners.
Chief Justice Roberts and Justices Breyer, Kagan, Sotomayor and Kavanaugh voted to deny lifting the stay. In a brief written concurrence, Justice Kavanaugh wrote that while he ultimately agreed with the District Court that the CDC had exceeded its existing statutory authority, the Court should not hear the matter given the pending expiration of the moratorium on July 31. By allowing the order to remain in place until then, ‘those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds.’
But Kavanaugh’s expectations were a tad wrong. CDC Director Rochelle Walensky and her crew renewed the moratorium on August 3, to, as the AP’s Sherman depicts it, “protect” renters from eviction.
No mention of principles – of the fact that the landlords and renters had freely-agreed private contracts that the feds had no constitutional or moral power to breach.
No mention of the fact that Congress has no constitutional power to distribute "rental assistance funds."
No mention of the fact that most of the landlords have mortgages on their property, and that, without their income from renters, said landlords will run the risk of big banks foreclosing, acquiring the property, then selling it to other big-money interests.
No mention that government "moratoriums" on eviction will deter potential entrepreneurs from creating new apartment housing.
This is the level of reportage we see from Sherman and the crackerjack team at the AP:
The court said in an unsigned opinion that the Centers for Disease Control and Prevention, which reimposed the moratorium Aug. 3, lacked the authority to do so under federal law without explicit congressional authorization. The justices rejected the administration's arguments in support of the CDC's authority.
No mention of the fact that “Congressional Authorization” is not the issue here. The real issue is two-pronged and of long-term constitutional import.
First, it wouldn’t matter if Congress gave the CDC authority to stop landlords from collecting the rent their clients promised. Even IF they had written such a statute, Congress doesn’t have the “constitutional power” to do so. For any Justice to pretend such a “power” exists, and then rest the decision on the observation that Congress didn’t engage that “power” when the CDC went forward with its ban, is to not only miss the point, it makes up “powers” that are not in the Constitution.
Such a line of thinking makes the enumerated-power framework of the Constitution completely irrelevant -- it negates the very existence and claimed authority of the US Constitution. Again, the CDC doesn’t have the power, and Congress doesn’t have the power, either.
Second, on a deeper level, the CDC itself is not sanctioned by the US Constitution.
But the SOCTUS majority isn’t concerned about that. Even though they are solidly against the CDC taking this action – their expressed reason has nothing to do with the so-called “rule book” that created their very COURT.
’If a federally imposed eviction moratorium is to continue,’ the ruling said about the moratorium Biden imposed as a means of protecting renters financially affected by the coronavirus, ‘Congress must specifically authorize it.’
Which, as an aside, isn’t exactly the best journalism, either, because, though the CDC reimposed the moratorium August 3, under Biden, the first version of the moratorium was imposed by Trump in 2020. And, of course, the description is shaded towards “protecting” renters, overlooking everything else.
But the bigger issue rests with the SCOTUS statement itself.
Again, any court member who swears an oath to protect and defend the US Constitution must acknowledge the fact that, even if Congress “specifically authorized it,” such an action would not be valid. To more starkly draw out the logic, one could ask the Justices: “If Congress ‘authorized’ the folks at Housing and Urban Development to raze a city block somewhere in the US, would that be okay?”
Clearly, it would not be okay.
Neither the action, nor the office of Housing and Urban Development are sanctioned by the US Constitution. And if the majority on the court can claim that something is valid merely because “Congress authorized it,” that means the framework of the Constitution can be broken – which, by extension, means that the constitutional rules about Congress aren’t valid, and that the constitutional rules about the Supreme Court also aren’t valid.
Which all begs the logical question:
Why should anyone pay attention to a court that advocates its own invalidity?
Though Justices Sonia Sotomayor, Elena Kagan and Stephen Breyer dissented from the majority per curiam opinion, they likely would not question the existence of the CDC at all.
Kavanaugh’s (and Roberts’) new shift to side with Justices Thomas, Alito, Gorsuch, and Barrett to block the CDC action also reveals one final facet of the federal system that deserves close scrutiny.
It’s the fact that no court has any power to take a statute off the books or “stop” anything. The judicial branch has no legislative or executive power. A ruling from a court merely gets taken up as precedent by lower courts, meaning that, should similar cases arise, they likely will be adjudged by lower courts according to the SCOTUS precedent, making it useless for executive branch agencies and police to enforce the statutes or regulations against which the SCOTUS ruled.
If the SCOTUS had ruled that the Fugitive Slave Act of 1850 was unconstitutional, as it should have ruled, then that would not necessarily have taken the law off the books. It merely would have meant that future arrests of slaves, when brought to court, would have seen judges likely abide by the SCOTUS precedent and allow the arrested slaves to go free. SCOTUS “negation” of a statute or regulation makes it impractical, and likely impracticable, to enforce that statute. Lower courts will release suspects arrested under that statute, and if they don’t, appealed case will just go to the SCOTUS, which, in all likelihood, will rule in the same fashion as it previously ruled.
Unless there is a vast change in the makeup of a particular population of Justices, most SCOTUS precedents will not be overturned.
All coming as a bit of an educational brief, derived from a strange eight weeks of SCOTUS monkey business with the CDC, and to jog our memories about the way the Constitution and separation of powers are supposed to work.
Emotions are heated. This issue is big. But one cannot lose sight of the Constitution and the fact that these landlords have rights to see their contracts as valid and to ask for their just compensation. It isn’t Rochelle Walensky’s place to tell them how to make deals for rent, just like it’s not her place to tell renters to pay more.
And the Justices of the Supreme Court should stand up to mention that Rochelle Walensky’s CDC itself is not sanctioned by any enumerated power in the Constitution.