As co-blogger Jonathan Adler explains, today the US Court of Appeals for the Sixth Circuit issued its decision in Tiger Lily, LLC v. US Department of Housing and Urban Development., ruling that the national moratorium imposed by the Centers for Disease Control is illegal. As Jonathan points out, the decision is not surprising because it reaches the same conclusion as the previous Sixth Circuit decision in the same case (denying the federal government’s motion to stay the district court’s decision against the moratorium). The main difference is that today’s decision is a final decision on the merits.
I agree with practically all of Jonathan’s comments. As he points out, this deepens the division of the circuit with the DC Circuit’s decision in favor of the moratorium, and thus increases the likelihood that the issue will eventually reach the Supreme Court, if the moratorium is extended beyond its date. current expiration date of July 31. . He is also correct that the Supreme Court recently noted that at least five of the nine justices believe the moratorium is illegal, even though a narrow 5-4 majority also, for now, refused to block the moratorium’s application.
For now, the ruling will have only limited effect, because the confirming district court decision only prohibits the application of the moratorium within the Middle District of Tennessee. It is not a national court order or even covering all of the territory over which the Sixth Circuit has jurisdiction. But the sixth circuit decision remains a notable setback for the moratorium, which comes on the heels of many other rulings against it.
Jonathan cites extensively the concurring opinion of Judge Amul Thapar highlighting the issue of non-delegation in the case and its importance to our constitutional structure. Thapar is a very prominent conservative judge and his opinion can be influential. It is also worth noting that Judge John Bush’s opinion to the court (along with the three justices) also highlighted the issue of non-delegation as an additional basis for the panel’s decision:
Finally, to put “extra icing on an already iced cake,” the government’s interpretation of § 264 (a) could pose a non-delegation pRoblem.Van Buren c. United States, 141 S. Ct. 1648, 1661 (2021) (citing Yates v. United States, 574 US 528, 557 (2015) (Kagan, J., dissenting)). Under that interpretation, the CDC can do anything it can think of to prevent the spread of disease. That reading would give the CDC director close to–dictatorial power for the duration of the pandemic, with the authority to shut down entire industries with as much freedom as possible to prohibit evictions….
In Applying the doctrine of non-delegation, the “degree of agency discretion that is acceptable varies according to the scope of the congress of powerconferred ally “. In the. Trucking, 531 US at 475. Such unfettered power would likely require further guidance than “such regulations as in their Judgment is necessary to prevent the introduction, transmission or spread of communicable diseases. diseases “.
The implications of the government’s position are actually even more extreme than the Sixth Circuit ruling suggests. Not only would the CDC enjoy “near dictatorial power during the pandemic,” it would continue to do so even in “normal” times. That is because the statute in question covers the measures taken “to prevent the introduction, transmission or spread of transmissible diseases. “There are no limitations as to the severity or contagion of the disease in question (except that it must be” contagious “).
Therefore, if the federal government is correct in stating that there are also no significant limitations on the nature of the “regulations” that can be adopted, the statute would give the federal government the power to suppress any activity that could potentially increase the spread of disease. Communicable of any kind, be it Covid-19, the flu, or even the common cold. I discussed this issue in more detail in my first post on the eviction moratorium, written in September last year, when it was initially adopted under the Trump administration. Since then, several federal courts have ruled against the administration largely due to similar concerns. I have written about these cases and the issues at stake in numerous previous posts, including here, here, and here.
We now have a total of nine lower court decisions on the legality of the eviction moratorium, of which six have ruled against its legality, while three have confirmed it (see here the links to my analyzes of the previous eight) . That doesn’t count a recent 11th Circuit ruling, in which a 2-1 majority refused to issue a preliminary injunction blocking the moratorium, but all three justices strongly suggested that they believe the CDC’s order is illegal.
Today’s ruling follows a pattern whereby, with rare exceptions, Republican-appointed justices have ruled against the moratorium, while Democrats have upheld it. This polarization is regrettable. In previous writings, I have noted some considerations that should at least give progressives a pause on allowing the executive branch to wield such broad power (see here, here, and here):
[B]Before concluding that the CDC’s order is legitimate, I urge liberals to consider whether they really want the next Republican administration to have the authority to suppress virtually any activity of any kind, as long as the CDC can claim that doing so would reduce the spread. of the disease, even to a small extent … Do you really want people like Trump, Ted Cruz or Josh Hawley to have that kind of power?
Non-delegation is far from a principle that only helps conservatives. Apart from [litigation over] The CDC’s eviction order, the most recent major decision invoking it was a district court ruling overturning Trump’s suspension of immigrant work visas.
If the CDC’s eviction order expires on July 31, as currently planned, this could well be the last significant ruling on the statutory and separation of powers issues at stake in these cases. But, for the reasons I’ve outlined here, homeowners affected by the moratorium may well continue to file Forfeiture Clause claims against them, seeking compensation for the financial losses they have suffered.
NOTE: The plaintiffs in some of the eviction moratorium lawsuits are represented by the Pacific Legal Foundation, where my wife works (although she is not part of the litigation team handling the matter). I myself have played a minor (unpaid) role in advising PLF on the issues involved.