Mobile home park ownership makes for strange bedfellows.
I dislike the three Supremes who were rammed through during the Trump administration. Gorsuch is taking up space where Merrick Garland belongs. Kavanaugh is a drunk who can’t stand up under cross examination. ACB is brilliant but crazy, with scary views on reproductive rights, religion and gun safety.
But – I like what they did in Alabama Association of Realtors, et al v. Department of Health and Human Services, et al, 594 U.S.___ (2021), No. 21A23, handed down yesterday. That is the case in which they overturned the latest CDC eviction moratorium.
The case has a complicated procedural history, which I will skip. The substance is as follows. §361(a) of the Public Health Service Act authorizes the CDC to:
“make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases [inter-state]. For purposes of carrying out and enforcing such regulations, 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.” 42 U. S. C. §264(a).
The provision contains two sentences, i.e. (i) a general provision saying that the CDC can do what, in its judgment, is necessary to limit the interstate spread of infectious diseases, and (ii) a list of common examples of measures to do same. The six conservative justices held that the second sentence indicates the type of public-safety provisions that Congress intended for the CDC to execute. These are limited to provisions with a direct, proximate-cause link to potential spread of disease like inspection, fumigation, disinfection, etc. An unbounded reading of the first sentence to include measures with a more attenuated link to disease control, like eviction moratoria, could lead to an overbroad and potentially absurd result. At least one of the six has a sense of humor:
“Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable? Require manufacturers to provide free computers to enable people to work from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work?” Id.
The equities – the majority continued – do not justify depriving land owners of their property rights any further. Rental assistance funds have been allocated and Congress has had time to pass a federal rent moratorium. Landlords should not pay for local governments’ inability to distribute ERAP funds and Congress’ ability to act.
Sotomayor, Kagan and Breyer dissented. In the dissenting opinion, Breyer wrote that, in interpreting the statute, the Court should look to the plain meaning of the first sentence. “Regulations as in [its] judgment are necessary”, said Breyer, means “any regulation that in its judgment is necessary”, and that the second sentence should be read as a non-exhaustive list of examples of potential measures, instead of a finite list intended to limit the CDC’s authority. He also said that the equities favor keeping the moratorium in place, because tenants are required to jump through certain evidentiary hoops to prove that they qualify for protection under the moratorium. He ended by citing the public safety concern of having unhoused people flood shelters and homeless camps during the Delta-variant surge.
I like the result reached by the majority, but both sides used slippery logic.
First – in reading the statute, the majority looked to implied intent and social context, while Breyer appealed to the plain meaning of the text. Say what? As I understand it (and I know, admittedly, so little about con law that I am unaware of my ignorance), textualists on the right look to the plain meaning of the text and eschew appeal to legislative intent, and liberals interpret laws to determine legislative intent and fit statutes within their social context. But now it looks like liberals can be textualists when it suits them – and that conservatives can reverse engineer legislative intent when it suits them.
The majority’s appeal to the equities involves a bit of sleight-of-hand. State governments have screwed up distribution of ERAP funds (and screw it up mightily they have). It is disingenuous to hold a federal agency like the CDC accountable for that. And of course Congress did not get its act together to pass federal eviction moratorium legislation. Progressives in the House and Senate don’t have the votes to do that.
In his dissent, Breyer feigned ignorance of real life. His claim that property owners were not burdened by the moratorium because tenants seeking protection under the moratorium had to attest that they have used best efforts to obtain government assistance, satisfy certain income requirements, have suffered economic loss due to COVID, continue to use best efforts to make partial payments, and have no place else to go is, well, problematic. Although Breyer makes an effort to distinguish this from the COVID hardship declaration that was recently overturned in Chrysafakis v. Marks, 594 U.S. ___(2021) No. 21A8, this is a distinction without a difference. A tenant claiming protection under the CDC moratorium doesn’t have to prove that he has, say, used best efforts to receive government assistance or make partial payments in court; he merely has to attest to them. The property owner has the right to contest these assertions in court, but that puts the burden on the property owner to demonstrate that the assertions are untrue. That requires the property owner to prove a negative and to prove the tenant’s intent. That is impossible to do outside of the ivory tower.
I have discussed Justice Souter’s flawed First Amendment analysis of pole dancing elsewhere. I think that that was an honest mistake on Souter’s part – he just didn’t know from strippers, he got excited about the legal issues, and he let his imagination run wild. By contrast, I do not think that Breyer’s statement about the protections to property owners afforded by the CDC moratorium is an innocent mistake. He’s a smart guy and he knows more about courts than Souter knew about strippers. I think it is a way to score rhetorical points.
Neither side said what makes the most sense to me. That is that the CDC should be authorized to promulgate whatever regulations they deem necessary to stop the inter-state spread of dangerous communicable diseases, but that they should be required to exhaust less-invasive measures first (By “less invasive”, I mean more closely linked to the CDC’s cores set of competences and more directly linked to the spread of communicable diseases). Outlandish measures,should only be allowed after invasive measures have been exhausted. The link between evictions and disease spread is likely but indirect. Housing policy and property rights are way outside the CDC’s realm of competence. However, there is a safe, effective and proven measure available that is squarely within the CDC’s core competence and that will do much more to stop the spread of COVID than an eviction moratorium. It is called vaccination. We need a federal vaccine mandate. Until a vaccine mandate has been tried, imposing an eviction moratorium to stop COVID is like a teenager joining NASA to meet girls. It might help in an attenuated way but the epiphenomena will eat the result and there are more effective ways to solve the problem. Applicable time and resources would be much better spent setting up a Tinder profile, joining a knitting club, or walking around town with a puppy or a toddler. If that doesn’t work, knock yourself out.