What’s going on?
In the past three weeks the Biden
administration has suffered repeated blows
from the Supreme Court regarding immigration, pandemic control and
women’s rights. The D.C. Circuit Court
upheld a stay of the Surgeon General’s eviction moratorium as “carefully targeted it to the subset of evictions [CDC] determined
to be necessary to curb the spread of the deadly and quickly spreading Covid-19
pandemic.” Then the
Supreme Court in Alabama
Association of Realtors v. Department of Health and Human Services struck down the
Centers for Disease Control’s order staying evictions that would render people homeless. Congress had approved and funded the moratorium
in the budget that became law in December 2020.
The
White House initially opposed a further moratorium, then extended it sixty days,
and again in March of this year, refining the terms. But Congress - in the throes of stalemate between the
Democratic led House and the evenly divided Senate – has seen little progress
by the states in implementing the emergency rent relief program it passed in
December of last year. The funds are relief need by tenants and landlords.
In the emergency order
issued by the Department of Health and Human Service the CDC observed that the newly homeless would be unlikely to
be vaccinated, to wear masks, or otherwise suffer from and transmit the virus
now threatening the entire globe. The
DHHS Order reported in March 2020 that
“the
Census Household Pulse Survey estimated that over 4 million adults who are not
current on rent perceive that they are at imminent risk of eviction. A wave of evictions on that scale would be
unprecedented in modern times. A large portion of those who are evicted may move
into close quarters in shared housing or, as discussed below, become homeless,
thus becoming at higher risk of COVID-19.
But
rather than wait for the elected branches to fight it out and the executive
branch spend what Congress appropriated, the Supreme Court narrowly construed
the Public Health Service Act.
Overruling the D.C. Circuit Court of Appeals, the high court ordered the stay be lifted. In a per curiam order a five member
majority declared that the stay [entered
by the D.C. federal District Court of its adverse judgment] allowing the moratorium to remain in effect was
not justified by 42 USC 264a - 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 one State or possession into any other
State or possession.”
A targeted eviction moratorium stemming evictions was, in the CDC and Surgeon General's expert view, one “such regulation”.
But six members of the Supreme Court found that the statute’s examples
limited rather than exemplified the Surgeon General’s Authority. "[I]nspection, fumigation, disinfection,
sanitation, pest extermination, destruction of animals or articles found to be
so infected or contaminated" were held to be so different in type from the
first sentence that they limited the Surgeon General’s powers.
The Court, in our view, made the mistake of turning a tool for construing an ambiguous provision into a rule of substantive law which hobbled the national government’s authority to deal with a crisis of national and global dimensions. The courts were famously described by Alexander Bickel as “the least dangerous branch”. But the justices and judges across the country should remember that the judiciary is the least competent branch. It lacks not just electoral legitimacy but the competence that Congress, legislators, Governors, and regulatory agencies have to make informed judgment.
Courts are not empowered to rewrite or revise
laws passed by Congress. The executive
branch is sworn to “faithfully execute” the laws. Absent bad faith the courts should keep hands
off.
The courts should look to the nature and needs
of the moment. States have proven
themselves inadequate to effectively control the covid-19 pandemic. New Jersey and New York suffered more storm deaths than did Louisiana
where Ida struck first. The states can take steps to
mitigate the impending crisis. But the
power of hurricane Ida demonstrated that state governments – bound like ours by
balanced budget laws – lack the capacity that only the national government has
to take comprehensive measures. The
confluence of the corona virus and climate change-driven catastrophic storms
demonstrate the scope of the global crisis.
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