We can expect now that the precedent of Alabama Realtors will be usedin eforts to strike the vaccination and mask guidance and mandates imposed via OSHA. Employers of over 100 will be required to compel vaccination or weekly Covid 19 tests as a condition of employment. Charges of Presidential overreach are here. The Biden administration efforts present another opportunity for the high court's five anti-government Catholics (and one lapsed Catholic) to find a shortage of Congressional intent as a means to further obstruct the efforts to stem the pandemic. The forthcoming OSHA Emergency Orders are at risk.
42 USC 264a - The Public Health Service Act - 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 one State or possession into any other State or possession.”
The measure - passed in 1944 - grants the Secretary of Health and Human Services authority to do what is "necessary" to prevent the spread of disease. But the Supreme Court's Republican majority found the list of specific examples the followed to limit the power of the President and the DHHS. The specifics are taken to mean "only the following type" of quarantine measures - not the broad order freezing evictions which CDC deemed to present a risk of homelessness and spread of the covid virus.
The Court majority in its unsigned opinion wrote "We expect Congress to speak clearly when authorizing an agency to exercise powers of “vast ‘economic and political significance.’”
Some generally liberal lawyer colleagues say the Supreme Court majority by narrowly construing the Public Health Act in Alabama Association of Realtors v. DHHS has protected us from overreach by a future Republican President. But if we obstruct the Biden administration's ability to relieve us from the pandemic, which is simultaneous with climate disasters such as Hurricane Ida, voters are likely to punish Democrats who favor a strong governmental role over Republicans who resist even the most plain of public health measures such as mask and vaccination requirements.
Did the brief Alabama Realtors order really block Presidential overreach? And stand as precedent to obstruct broad interpretations of executive authority? As the D.C. Circuit pointed out - Congress very much participated in the measure - specifically approving part of it in the December 2020 omnibus funding bill, and designating $4.5 billion for rent relief to be distributed principally by the states.
The chance of the Supreme Court as now constituted placing limits on a future Republican President are slim. As Sonia Sotomayor has pointed out, the Court has repeatedly "placed a thumb on the scales" to favor Donald Trump - particularly in his anti-immigrant measures. Presidential power is usually seen as at its peak in an emergency.
Some liberals fear that if we do not embrace the voiding of the eviciton moratorium a future right wing President will rule by fiat. But the moment when Republicans ruled by fiat can be traced back to In Re Debs (1895) when they turned the courts into nationwide strike-breaking tools via injunctions. Not until the 1932 Norris LaGuardia Act was the executive power to obtain anti-strike injunctions blocked by depriving the courts of jurisdiction. The Supreme Court was useless when it came to blocking Trump's Proclamations, emergency orders and plain obstructions of the asylum laws. Courts acted and the Supreme Court stayed the injunctions, leaving them in effect until Biden started seeking relief.
The notion that the per curiam order vacating the eviction moratorium will act as any precedential restraint is wishful thinking.
If you want to find Congressional authority for the eviction moratorium you will find its express authorization in the December 2020 budget resolution and in the billions of dollars that Congress made available to the states for rental relief. The complexity of the situation led to a series of anti-eviction orders, as well as the funding. Congress, as the source of appropriations, and an elected body, is far better equipped to prevent executive overreach than are the courts - the least competent branch. Congress via the appropriations process has played a major role in the restraints on eviction.
It is to Congress and the elected executive branch we have to look. Of course the electorate may defeat us - particularly since the rural states have a structural advantage, and the Supreme Court in Rucho v. Common Cause declared it will stand aside in redistricting fights in the states - where the Republican advantage is structural. But it is Congress which gave us the Civil Rights Act when the best-intentioned courts were unable to make a dent in racial segregation of public schools. Congress gave us Social Security, Medicare, Medicaid, the Occupational Safety and Health Act, and the Affordable Care Act. The Supreme Court's contribution to democracy pales in the face of Congress's contributions. It is not only the least competent branch, but it may also be the "most dangerous branch" - in a sense opposite that suggested by Justice Thomas yesterday. I mean the role that it has played in what Michael Klarman has called the degradation of democracy. Throwing wrenches in the spokes of the elected branches struggles is a big part of the dangers presented by the Supreme Court and its freshly minted allies in the lower courts.
- George Conk
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