Some losses stick in the craw more than others. The Supreme Court's voiding of the federal eviction moratorium is one. It reversed the D.C. Circuit decision allowing the CDC eviction moratorium to continue. But in Alabama Association of Realtors v. Department of Health and Human Services the Supreme Court (6-3) held the regulation unauthorized by the Public Health Act.
My discomfort was renewed by an essay in today's New York Times:
Princeton sociologist Matthew Desmond reports on an Eviction Lab study about the lives saved by state eviction moratoriums. As States withdrew the toll mounted. Some was covered by the CDC-tailored moratorium upheld by the federal Court of Appeals in D.C. but voided by the Supreme Court in an appeal by Alabama Association of Realtors. The federal moratorium was accompanied by a huge appropriation for rental assistance which states have been slow to deliver...but which, of course, would also aid the landlords and mortgage holders, who remain free to lobby Congress for even more help]
The Supreme Court held (6-3) that a program of such broad impact was not justified by the Public Health Act [42 USC 264 (a)] which authorizes the Surgeon General to to do by regulation what is "necessary" to stop the dissemination of communicable diseases. Slicing through the law with a scythe the six conservatives - "textualists" all - held that the word `necessary' was not clear enough.
Desmond observes:
A study by researchers at Duke found that eviction-prevention policies reduced the pandemic death rate by 11 percent. If the federal eviction moratorium had been enacted at the start of the pandemic instead of several months into it, it could have lowered the death toll by even more.
Without getting into the weeds on study design and strength, this sort of thing provides a rational basis for Congress to have acted - as it did - in funding (in part) the moratorium. The Department of Health and Human Services in ordering eviction moratoriums was certainly within its statutory authority - authorizing the Surgeon General under 42 USC 264 (a) to construe "necessary" to "prevent the introduction, transmission or spread of communicable disease" as meaning, well, "necessary". But rather than resort to the textualism which some justices celebrate on some days and other issues, the Scotus majority granted the motion on the emergency docket to vacate the stay of a District Judge's opinion voiding the moratorium.
A straightforward reading of the words of the PHA adopted in 1944 at the height of the need for war powers should lead judges to defer to the elected branches - Congress, the CDC, and the Department charged with protecting the nation's health. But the Supreme Court declared that such an important policy required more explicit authorization - thus leaving the sick and the soon to be sick to the mercies of state governments.
The majority instead declared "We expect Congress to speak clearly when authorizing an agency to exercise powers of “vast ‘economic and political significance.’” Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160 (2000). " This sort of marching through the field of legislation with a scythe is the sort of "judicial activism" which the majority and their allies have long lamented.
Some have argued that they fear that an inevitable future Republican President will use liberal construction of a statute like the Public Health Service Act to justify abuses in a second Trump or future GOP administration. But that sort of long view is short-sighted. People are dying now. The death toll has broken 700,000 - exceeding the 1918 flu pandemic. The plain text of the Public Health Act [endorsed by Congress in the December 2020 budget approval] tells us that unmistakable emergency provides the necessary limits on Presidential authority to act faithfully to execute the laws.
Preaching restraint the conservative Yale law professor Alexander Bickel - a Brown v. Board skeptic - coined the label "the least dangerous branch" for the judiciary. The senior Justice - Clarence Thomas - last week declared liberal judges may make it "the most dangerous" branch. But now, as in an earlier draft, I point out that it is "the least competent" branch. Ill equipped to make the public health or the financial judgments that are the province of the Congress and the Executive, the Supreme Court should have kept hands off, rather than laying down strictures on how the sausages should be made.
- GWC
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