Rigorous studies have demonstrated that expiration of state moratoria on home evictions have had a substantial negative impact on the public health, causing an increase in cases of Covid-19 and associated deaths. Michael Desmond of Princeton summarized these points in an essay in today's New York Times.
Despite CDC's decision that preventing evictions was important to the statutory mandate [42 USC 264(a)] to do what is "necessary" to prevent the "dissemination of communicable disease" the Supreme Court struck down the CDC's carefully drawn eviction moratorium. Reading Congressional intent the Court declared [6-3] that Congress had no spoken clearly enough. The Congress couldn't have meant to place in the hands of the Surgeon General such a complex social and economic policy. But the SG is not a solo actor: he/she acts on the basis of advice by the CDC, and is subject to the Secretary of the Department of Health and Human Services, and ultimately the president. And in this case the Congress had provided substantial funding for rent and other housing relief.
Bloodless legal analysis often leads law astray. As Oliver Wendell Holmes, Jr. said: the life of the law is experience, not the syllogism. So rather than asking the question what precisely did Congress have in mind when it authorized the Surgeon General, speaking for the CDC, and the Department of Health and Human Services to do what is "necessary" to prevent the spread of infectious disease? The better question is in the face of this crisis have the expert agency and the Congress which funds it taken reasonable steps for which a basis in law can be found? The actual judgment, here, of course is a melange of Executive and Legislative power: an order and an appropriation.
Did the 1944 Congress envision what to do in a pandemic? No but they did envision the need for massive governmental action. In appraising a statute' sufficiency Courts should ask whether they should interfere with complex regulatory and fiscal calculations and compromises that result from the workings of the "political" branches. The sausage making from which courts are expected to stand aside, rather than intervene, because they lack both mandate and the expertise. And they should show a decent respect for the opinions of those who are charged with protecting the general welfare.
A judge taking an appropriate stance will ask what are the consequences of my intervention? Of spiking an executive action? In the Alabama Realtors case against the eviction moratorium a court should take into account the conclusions relied upon by the authors of the Princeton Eviction Lab study Eleven Months of the CDC Moratorium. That is the study published in the American Journal of Epidemiology Expiring Eviction Moratoriums and COVID-19 Incidence and Mortality. It concludes:
COVID-19 incidence and mortality increased steadily in states after eviction moratoriums expired, and were associated with doubling of COVID-19 incidence (incidence rate ratio 2.1; 95% confidence interval (CI) 1.1,3.9) and a five-fold increase in COVID-19 mortality (mortality rate ratio 5.4; CI 3.1,9.3) 16 weeks after moratoriums lapsed. These results imply an estimated 433,700 excess cases (CI 365200, 502200) and 10,700 excess deaths (CI 8900,12500) nationally by September 3, 2020. The expiration of eviction moratoriums was associated with increased COVID-19 incidence and mortality, supporting the public-health rationale for eviction prevention to limit ORIGINAL COVID-19 cases and deaths.
- GWC
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