Published by The Lawfare Institute
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It is hard to fathom how the experienced policy advisers and lawyers atop the Biden administration could have screwed up so badly in connection with the administration’s defense of the Centers for Disease Control and Prevention (CDC) eviction moratoriums. The administration made it seem like it was acting blatantly unlawfully, when it was not. It made it seem like it needed bottom-covering arguments from law professors outside the administration when the arguments that the Justice Department of two administrations had made in defending the moratorium ban sufficed. And it made it seem like Speaker of the House Nancy Pelosi, rather than Attorney General Merrick Garland or White House Counsel Dana Remus, was directing legal decision-making in the Biden administration. All of this happened because the Biden administration over-reacted to a Supreme Court order that refused to halt the CDC moratorium. The administration’s rule-of-law credibility is the big loser; and the Supreme Court’s shadow docket the big winner.
The Biden administration’s legal position finds its roots in decisions and arguments made during the Trump administration. In 2020, Congress established a 120-day eviction moratorium on rental properties receiving federal assistance. It expired in July 2020. On Aug. 8, 2020, President Trump ordered the secretary of health and human services and the director of the CDC to “consider whether any measures temporarily halting residential evictions of any tenants for failure to pay rent are reasonably necessary to prevent the further spread of COVID-19” from one state to another. The CDC concluded that such measures were reasonably necessary. On Sept. 4, 2020, it implemented a broad eviction moratorium that applied to all rental properties nationwide.
The statutory basis for this order was 42 U.S.C. § 264, which authorizes the secretary of health and human services to make regulations “necessary to prevent the introduction, transmission, or spread of communicable diseases … from one State ... into any other State.” The regulatory basis for the order was 42 C.F.R. § 70.2, which authorizes the director of the CDC, upon a finding of inadequate state or local measures, to take measures to prevent the spread of diseases “as he/she deems reasonably necessary.” We can presume the Trump administration lawyers involved in the president’s Aug. 8 executive order, and the subsequent CDC order, and the litigation about this order, believed in good faith that the CDC action was lawful under these provisions.
The first CDC order was set to expire on Dec. 31, 2020. Congress extended it one month to Jan. 31, 2021. When the congressional extension expired, the CDC—acting now under the Biden administration—twice extended the moratorium by agency order based on the same legal authorities that the Trump team relied on. The second extension was due to expire on June 30, 2021.
The lawsuit that sparked the current controversy began when rental managers and trade associations sued the Department of Health and Human Services and argued that the latest CDC order was unlawful. The federal district court agreed and granted summary judgment for the plaintiff. The district court judge subsequently stayed the judgment—that is, allowed the moratorium ban to continue—pending appeal, even though she believed the government had not shown a “substantial likelihood of success on the merits.”
The plaintiffs then asked a panel of the U.S. Court of Appeals for the District of Columbia Circuit to vacate the district court stay pending appeal. The court declined to do so and allowed the moratorium ban to continue. In so doing, the court of appeals determined, contrary to the district court’s conclusion, that the Department of Health and Human Services had “made a strong showing that it is likely to succeed on the merits.”
The Supreme Court Order
At this point the plaintiffs asked Chief Justice John Roberts to vacate the district court stay. He referred the application to the entire Supreme Court, which on June 29 denied relief. Four justices—Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett—indicated that they would have granted the application but did not explain why.
Justice Brett Kavanaugh concurred in the court’s denial of relief and wrote an unusual one-paragraph opinion that made three points. First, he stated that the CDC “exceeded its existing statutory authority by issuing a nationwide eviction moratorium.” Kavanaugh did not explain this conclusion except to cite a decision that invalidated “an enormous and transformative expansion” of Environmental Protection Agency regulatory authority without “clear congressional authorization.” Presumably he thought the CDC order suffered from the same defect. Second, Kavanaugh nonetheless voted to deny the application to vacate the district court order because the short period before the moratorium expired would “allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds.” Third, he asserted (without further explanation) that “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”
It is important to be clear about the meaning and precedential effect of this order, because a lot of subsequent confusion—in the administration and the commentariat—flowed from a misinterpretation of the order. The court did not, as David Harsanyi maintained, rule “that the CDC had ‘exceeded its existing statutory authority’ and was obliged to stop.” The court did something closer to the opposite. It rejected plaintiffs’ request to make the CDC stop when it declined to vacate the district court stay. Nor did the court rule that the CDC had “exceeded its existing statutory authority.” Only Kavanaugh said that.
Of course one might predict based on the court’s June 29 order that the court would, if it had the chance, declare the CDC eviction moratorium unlawful. Many people did predict this based on what Kavanaugh stated and on the vote by the four justices to vacate the district court stay, which would have (under the district court’s merits ruling) had the effect of halting the moratorium ban. But a confident prediction is not a legal ruling. And while Kavanaugh’s position on the then-extant CDC order was clear, the position of the other four justices was not. We know nothing about why the four justices voted to vacate the stay. Perhaps some of them agreed with Kavanaugh that the CDC exceeded its authority. But they did not tell us. At most, one might infer that the four justices, in voting to vacate the stay, did not believe the government had shown that it was “likely to succeed on the merits.” But even that inference, which is not certain, falls short of a conclusion that the government had acted unlawfully.
Nor do we know what those four justices, or Kavanaugh, thought about the district court’s invalidation of the eviction moratorium on a nationwide basis. On this issue, given past opinions, one might predict that some or all of these five justices (Kavanaugh plus the four) would have agreed with the government’s argument that even if the stay were lifted, “relief should be limited to the parties found to have standing” because “a universal or nationwide injunction, vacatur, or decree that extends beyond the parties found to have standing would be improper.”
In short, the Supreme Court’s only ruling was to deny the application to vacate the district court stay, which had the effect of allowing the CDC eviction moratorium to continue until expiration. Beyond this technical conclusion about what the court did, there is a broader reason not to read more into the court’s order. The order was a response to an emergency application to vacate a stay on the court’s so-called shadow docket—that is, for present purposes, the court’s orders list and related opinions. The parties had expedited and truncated briefing; the legality of the CDC order was technically not before the court; the parties addressed the legality of the CDC order only indirectly, through the lens of the standard for vacating a stay; only one amicus brief was filed; the court did not hold oral argument; the court issued no decision on the merits or any reasoned opinion; and it said not a word about the legality of the eviction ban. In this unusually impoverished procedural context, one should not overread the court’s order. Certainly the order imposes no adverse legal obligation on the government.
What the Biden Administration Could Have Done
After the court’s June 29 order, the Biden administration faced the question about what to do when the CDC moratorium ban expired on July 31. It had at least three options, all of which would have been consistent with the Supreme Court order and Justice Department traditions, and perfectly lawful.
First, it could have sought new legislation making clear that the CDC was authorized to issue the rent moratorium. Such legislation, if enacted, would—like the original 2020 legislation establishing a 120-day eviction moratorium on rental properties—make the CDC eviction ban clearly lawful.
Second, it could have reissued the same nationwide CDC moratorium that was in effect prior to July 31. This would have been entirely consistent with the Supreme Court’s order. Some circuit courts had ruled that this CDC order was unlawful, but the D.C. Circuit had stated (in the context of the stay vacation application) that the government was likely to succeed on the merits. All the arguments that the government had made in the Trump and Biden administrations’ litigation of the CDC orders would have been available in support of such a renewed order. The politics of this move would have been tough in some quarters, especially in light of Kavanaugh’s statement. And the new moratorium might have been quickly enjoined. But no legal or ethical obstacle stood in the way of this approach.
Third, the Biden administration could have issued a new and narrower non-nationwide moratorium with renewed findings about necessity. Once again, all the arguments that the government had made during the Trump and Biden administrations’ litigation of the CDC orders would have been available in support of such a renewed order. The arguments would have been more powerful since the moratorium ban would be narrower. Indeed, the government could have distinguished a narrower, non-nationwide ban even from the Kavanaugh opinion, which said only that the CDC had “exceeded its existing statutory authority by issuing a nationwide eviction moratorium.”
The administration could have pursued options two and three even if it believed it would ultimately lose in the Supreme Court. The Justice Department traditionally defends executive branch orders and related action if there are reasonable arguments in its favor, regardless of whether it views the arguments to be persuasive, which is an issue ultimately for courts to decide. Every administration of both parties follows this principle on a regular basis. Options two and three would have easily satisfied this principle. After all, the arguments in favor of the CDC moratorium had been argued in court in good faith by two very different administrations. And nothing in any of the extant judicial rulings—and certainly nothing in the Supreme Court’s June 29 order denying the district court stay—rendered those arguments unreasonable.
I want to emphasize that while the Biden administration had sound legal options to renew the CDC eviction moratorium under options two and three, there were also sound prudential reasons, from the Justice Department’s perspective, not to renew. The department, and especially the solicitor general, might have worried about credibility before the Supreme Court in light of its June 29 order, even if the order technically had no legal consequences.* Or, more powerfully, the Justice Department might have worried that a likely and perhaps quick loss on the merits in the Supreme Court on a renewed eviction moratorium might limit the CDC’s ability to take vital emergency action in the future. To say that the administration had legal options to renew the eviction moratorium is not at all to say that it would be a good idea to do so. The point is simply that no legal or ethical obstacle stood in the way.
The Biden Administration’s Errors
A few days after the CDC moratorium ban expired on July 31, the Biden administration, on Aug. 3, chose option three above. It issued a new and narrower eviction moratorium order that applied to about 80 percent of U.S. counties and about 90 percent of the U.S. population. The administration defended the legal order in court, basically on the theory sketched above. But in the days before issuing the new CDC order, the administration in its public statements misinterpreted and misportrayed the Supreme Court’s June 29 order in ways that made its decision to issue a narrower eviction ban seem lawless.
The errors began on Thursday, July 29, when press secretary Jen Psaki announced that President Biden was pursuing option one above—new legislation to extend the eviction moratorium. She explained:
President Biden would have strongly supported a decision by the CDC to further extend this eviction moratorium to protect renters at this moment of heightened vulnerability. Unfortunately, the Supreme Court has made clear that this option is no longer available. In June, when CDC extended the eviction moratorium until July 31st, the Supreme Court’s ruling stated that “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”
In light of the Supreme Court’s ruling, the President calls on Congress to extend the eviction moratorium to protect such vulnerable renters and their families without delay.
This is all wrong. The Supreme Court did not say or imply (much less “ma[k]e clear”) that extension of the eviction moratorium was an unavailable option; all it did was to allow the old CDC eviction moratorium to continue until its expiration date. And the court did not rule that new legislation was needed for the CDC to extend its mortarium; only Justice Kavanaugh said that. These four erroneous sentences set the stage for all the confusion that would follow.
One wonders what system the Biden press secretary’s office has for coordinating its legal statements with White House lawyers on such consequential matters. In my experience, the lawyers would have taken a chop on the legal underpinnings of the administration’s public argument for why Congress had to act in this important context. If that happened, then the lawyer who advised Psaki made a significant mistake. If it did not happen—if the White House press secretary was freelancing on the administration’s legal interpretations—then presumably someone in the White House counsel’s office would have noticed her mistakes and corrected them for Psaki and other White House actors going forward.
But that did not happen. Four days later, on Monday, Aug. 2, Gene Sperling, the Yale Law School-trained White House coordinator for distribution of coronavirus relief funds, repeated the erroneous talking point: “Unfortunately, the Supreme Court declared on June 29 that the [Centers for Disease Control and Prevention] could not grant such an extension without clear and specific congressional authorization.” Sperling added that, as of that date, “the CDC director and her team have been unable to find legal authority” to extend the moratorium.
By this point two very senior White House officials had told the world that the administration had concluded that the June 29 Supreme Court order ruled out a new CDC moratorium. But on the very next day, Aug. 3, the CDC issued the new and slightly limited eviction moratorium. The administration appeared to be doing precisely what Psaki and Sperling said it believed it could not lawfully do. It was entirely understandable that so many commentators believed that the administration was acting lawlessly.
This impression was affirmed by President Biden’s statements on the afternoon of Aug. 3, just before the CDC announced its new eviction moratorium. When asked whether he believed the new order would “pass Supreme Court muster,” the president gave this less-than-clear statement:
I’ve sought out constitutional scholars to determine what is the best possibility that would come from executive action, or the CDC’s judgment, what could they do that was most likely to pass muster, constitutionally.
The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster. Number one. But there are several key scholars who think that it may and it’s worth the effort. But the present — you could not — the Court has already ruled on the present eviction moratorium.
So I think what you’re going to see, and I — look, I want to make it clear: I told you I would not tell the Justice Department or the medical experts, the scientists what they should say or do. So I don’t want to get ahead.
The CDC has to make the — I asked the CDC to go back and consider other options that may be available to them. You’re going to hear from them what those other options are.
I have been informed they’re about to make a judgment as to potential other options. Whether that option will pass constitutional measure with this administration, I can’t tell you. I don’t know. There are a few scholars who say it will and others who say it’s not likely to.
Biden here repeated the erroneous view that the court had “already ruled on the present eviction moratorium.” And he suggested that his administration did not believe that the CDC could lawfully issue a new moratorium. He stated that the “bulk of the constitutional scholarship”—by which he likely meant the weight of legal opinion—“says that it’s not likely to pass constitutional muster.” And he said that he “would not tell the Justice Department … what [it] should say or do,” just after noting that “several key scholars … think [the new CDC moratorium] may [be constitutional] and it’s worth the effort.” Biden’s remarks are hard to render entirely coherent. But they were plausibly interpreted, especially in light of the Psaki and Sperling statements, to mean that the administration had concluded that a new CDC eviction moratorium was illegal but that, based on the input of “key scholars,” the moratorium would issue in any event.
The optics got even worse when it was reported that political pressure from Congress sparked the administration’s apparent legal reversal. The reporting has been a bit cloudy, but this much seems clear. Democratic Rep. Cori Bush led a deft political campaign to renew the eviction moratorium. And after Speaker of the House Nancy Pelosi was unable to secure the votes for a new moratorium, she told the administration that she “did not accept” its explanation that its hands were tied by the Supreme Court’s order, according to the New York Times. “Get better lawyers,” Pelosi told unnamed Biden officials. She also advised that Harvard Law professor Laurence Tribe believed (in the Times’ paraphrase) that “it would be lawful for Mr. Biden to extend the moratorium again.” As the “political pressure mounted on Mr. Biden,” the Times says, White House Counsel Dana Remus “and other lawyers began taking another look at options that had looked less attractive at the beginning of the month.” The White House also called, and got legal support from, Harvard Law professors Martha Minow and Joseph Singer, and Duke Law professor Walter Dellinger. Administration lawyers then concluded, according to the Times, that the CDC could “lawfully act” to issue the new, narrower order.
These revelations, in light of the earlier administration statements, made it seem like the administration had concluded that it could not lawfully renew the CDC moratorium but flipped its legal view under ferocious political pressure from Pelosi and Bush, with the assistance of cherry-picked legal advice from professors close to the administration. It seemed, in short, like the administration acted lawlessly to satisfy the fury of the left wing of the Democratic Party. This impression was deepened by the left’s reaction to the administration’s apparent flip-flop. Rep. Alexandria Ocasio-Cortez, for example, described the flip-flop as “a huge victory for the power of direct action and not taking no for an answer.”
As Alan Rozenshtein has noted, a major question in this public relations debacle is the role of the Justice Department—the solicitor general, the Office of Legal Counsel and the attorney general himself. Before the new CDC order, the Biden team acted as if the administration had concluded definitively that it could not lawfully issue a new order. The certainty with which Psaki and Sperling asserted this position, and the president’s statements in his Aug. 3 press conference, suggested that the Justice Department had advised that the CDC eviction moratorium ban could not be renewed. Some component of the Justice Department would have been involved in the deliberations about the legality of a new CDC order. And there would be no reason for the White House to consult outside scholars if the Justice Department had approved the legality of the move. Yet a Justice Department thumbs-down on the legality of the new CDC order never made sense, since nothing in the department’s arguments in support of the old CDC moratorium were formally affected by the Supreme Court’s June 29 order.
The mystery is deepened by the fact that the New York Times’ reporting on this matter does not mention the Justice Department or its views. That is very strange, since the White House must have consulted the department. This statement too is odd:
There was widespread agreement, according to an official familiar with internal deliberations, that the Supreme Court’s action in June did not amount to a definitive and binding precedent. That meant, for the moment, it would not be illegal for the government to issue another ban — especially one more narrowly focused on hard-hit counties.
This is (as I explained above) the right interpretation of the June 29 order. But it is very hard, maybe impossible, to square with the Biden administration’s statements about its hands being tied, or with the president’s remarks on Aug. 3. The Times also suggests that at some point the (unidentified) lawyers reached a consensus about the legality of a new eviction ban but worried about the prudential consequences, mentioned above, of issuing it. This too is hard to square with the administration’s earlier public claims about its legal views. There is still much to learn about why the Biden administration so badly misportrayed the court’s June 29 order; about the advice given to the White House by the Justice Department (and by which component); and about the communication and coordination between the department, the White House Counsel, and Psaki, Sperling and the president, on these matters.
Even though we don’t know yet much about the inside baseball of the moratorium fiasco, some lessons are clear.
First, good lawyering is vital. If (as seems plausible) an administration lawyer advised Psaki and Sperling and President Biden that the Supreme Court had already ruled on the validity of the eviction moratorium, that lawyer made a mistake. The public relations fiasco followed directly from this misinterpretation.
Second, proper coordination among senior legal advisers is vital. We don’t yet know about how the lawyers in the White House, the Justice Department, and the CDC coordinated their legal arguments and positions, but it did not work well.
Third, and maybe the most important lesson: Sound legal analysis needs to be filtered through public messaging. Or perhaps better, public messaging needs to be constrained by sound legal analysis. Psaki and Sperling made legally erroneous claims about a new CDC eviction moratorium. The president, too, said erroneous and self-defeating things about the legality of the expiring and new CDC moratorium. These public messaging blunders gave rise to the entirely understandable though misleading inference that the administration was acting lawlessly.
Fourth, legal analysis should to the extent possible be detached from political aims. It is hard to know, but the administration might have used an opportunistic legal argument (that its hands were tied by the June 29 Supreme Court order) to pressure Congress to enact a new moratorium. Pelosi accurately called “bullshit,” and the administration backtracked in a way that seemed lawless.
Fifth, the Supreme Court wields enormous power through its procedurally impoverished shadow docket rulings. All the court did was to allow the conviction moratorium ban to proceed until its expiration date. But five justices—Kavanaugh in a paragraph for him only, and four more simply through saying that they would vote to vacate a stay—signaled with various degrees of certainty that they would invalidate the CDC eviction moratorium if they reached the merits (and perhaps they sent a dimmer signal about the legality of a narrowed eviction moratorium). These justices sent these signals without anything approaching full deliberation about the legality of the CDC moratorium.
Yet despite the diminished procedural context, and without any explanation from the Court, many in the administration and in the commentariat treated these signals as a conclusive prediction about how the Supreme Court viewed the legality of the eviction moratorium. And largely due to the Biden administration’s mismanaged messaging, the public (including many commentators sympathetic to the administration) viewed the administration as lawless because it declined to bow to this predicted Supreme Court ruling. It’s all an impressive new twist on Justice Oliver Wendell Holmes’s adage that “[t]he prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” And it is a master lesson about how the court can achieve important substantive rulings on its shadow docket without the normal requirements of procedural rigor and reasoned decision-making.
*An astute reader pointed out that the Solicitor General wrote this letter to the Supreme Court when the application to vacate the district court order was pending. The letter informed the Court that the CDC was extending its temporary moratorium from June 30 to July 31. The letter also stated (with my emphasis): “In issuing the order, the CDC stated: ‘Although this Order is subject to revision based on the changing public health landscape, absent an unexpected change in the trajectory of the pandemic, CDC does not plan to extend the Order further.’”
The Court issued the June 29 order in reliance on this representation. Indeed, Justice Kavanaugh had this representation squarely in mind when he allowed the old CDC moratorium to continue. He wrote: “Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application to vacate the District Court’s stay of its order.” To be sure, the CDC left itself wiggle room if there is “an unexpected change in the trajectory of the pandemic.” Yet in light of the CDC representation and the Kavanaugh reliance, one can understand why the Justice Department, and the Solicitor General in particular, might worry about its (and the government’s) credibility before the Court if the CDC renewed the eviction moratorium. This concern would significantly enhance the prudential argument I flagged above for not extending the moratorium. Yet we still do not know the position of the Justice Department or its components concerning the renewed CDC eviction moratorium.