Pastures of Plenty - Woody Guthrie
Is the judiciary the most dangerous branch?
We expect Congress to speak clearly when authorizing an agency to exercise powers of “vast ‘economic and political significance.’”
Scotus - Per Curiam - 6-3 August 21, 2021 in Alabama Ass'n of Realtors
With no legal avenues remaining to take action on its own, the Biden administration issued a plea to state and local officials on Friday to do more to help. In a letter, top cabinet members urged governors, mayors, county executives and judges to apply for federal aid before enforcing evictions and recommended that evictions be delayed while rental aid applications were pending."
NY Times August 28, 2021 reporting on the consequences of the U.S. Supreme Court decision in Alabama Realtors blocking the CDC eviction moratorium.
READ:
Alabama Association of Realtors v. Department of Health and Human Services United States Supreme Court (2021) Per Curiam; Breyer, J., dissenting (with Kagan and Sotomayor)
The most dangerous branch. Arrogant and unreviewable.
- By George Conk
I hadn't yet absorbed the Supreme Court's reversal of course on immigration (now greenlighting injunctions limiting Presidential discretion on immigration policy) when the high court -limiting an emergency public health measure stopping evictions - leapt to its bottom line: property rights over public health. Of course the majority formally embraces the limitation of federal powers. But it is notable that in its aggressive statutory construction limiting a Congressional grant of power to protect public health the majority reached back to a notably broad rendition of the `castle doctrine' - that a "man's home is his castle":
Despite the C[enters for] D[isease] C[ontrol]’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means. And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership—the right to exclude. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 435 (1982).
In Loretto the court found a `taking' of property by New York which compelled landlords to allow a cable TV company to install wiring at the request of a residential leaseholder. The attachment and installation of cable devices were a physical intrusion on the owner's right to exclude, according to Justice Thurgood Marshall's majority opinion.
Justice Thurgood Marshall did caution that "States have broad power to regulate housing conditions in general and the landlord-tenant relationship in particular without paying compensation for all economic injuries that such regulation entails." But Harry Blackmun (joined in dissent by William Brennan and Byron White) warned of the implications of the principle that even a trivial regulatory burden is a `taking' compelling compensation under the due process clause of the 5th Amendment to the U.S. Constitution.
Long recognized precedent declares that the federal government - contrary to popular expectation - is not generally empowered to protect the public health and welfare. Gibbons v. Ogden (1824) distinguished between the regulation of commerce and the general "police power" such as to quarantine. But the Alabama Realtors court did not elect to challenge the national government's authority as beyond that allowed under the commerce clause power specified in Article I of the Constitution. Instead it narrowly construed 42 USC 264a of the Public Health Service Act which provides:
The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.
But the court decided that Congress did not allow the Surgeon General or Secretary's discretion to run beyond the routine examples offered by the statute - "inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated"
This sort of statutory construction is an example of the lawyerly craft of turning words into their opposite. Thus "such measures" are limited to the sorts specifically enumerated in the Consitution. The public interest and necessity are given no heed. So our national government lacks the power to protect health that it has over commerce. See In re Debs (1895) “The strong arm of the national government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails”. No mandate is recognized to protect the public health such as preventing many thousands from joining the ranks of the homeless in a modern version of the Dust Bowl migrations.
In my view the question should be framed is NOT "What does the law command?" But does the law allow what the elected branches have decided is necessary and proper? By that measure the CDC residential eviction moratorium order would stand. And it would fall to the elected branches to decide whether and how to distribute the burden imposed by the pandemic-related limitations.
- GWC August 26, 2021
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