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By Elie Honig

Dear Listener,

The concept of “rule of law” — like “justice” or “fairness” or “right” — is inherently malleable. Much is in the eye of the beholder. “Rule of law” has a bit more grounding than some of its lofty conceptual cousins; it suggests, at a minimum, following the law as written. But of course any sentient critical thinker can argue around (or even within) the strictures of “rule of law” to arrive at virtually any preferred outcome. This is what lawyers do, after all, and if the law was always clear cut, our courts would be out of business.

But there has to be a line, somewhere. “Rule of law” can’t become a euphemism for “Whatever I want to happen” or “Whatever outcome feels best.” With its recent extension of the nationwide eviction moratorium, the Biden administration is walking that fine line, and has undermined rule of law in favor of political expediency. 

Here’s how we got here. In March 2020, Congress passed a broad Covid-relief law, the “CARES Act,” which included provisions that temporarily suspended residential evictions until July. Then, in September 2020, the Centers for Disease Control (under the Trump administration, it’s important to note) issued its original moratorium, which again temporarily halted all residential evictions nationwide. 

But the CDC moratorium, from the start, was built on a shaky legal foundation. It is not “law” — at least not in the Schoolhouse Rock sense of Congress voting on a bill and then sending it to the president’s desk for signature. Rather, the CDC unilaterally issued the original eviction ban based on a federal regulation that empowers Executive Branch officials to “take such measures to prevent such spread of the diseases as he/she deems reasonably necessary, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.” (Yes, destruction of animals; thankfully, we’re not there.)

The argument that the ban fits within this regulation is, essentially: “Well, if people are evicted during the Covid crisis, they’ll be out on the streets, or at least more transient, and that in itself raises the risk of spread.” Perhaps, to some extent. But this just isn’t the kind of measure contemplated on the face of the law. The regulation plainly authorizes hands-on, physical measures to control the spread of disease — fumigation and sanitation and the like — and not a sweeping, nationwide freeze on the rental housing market. And, let’s be honest: we all understand that the true purpose — an admirable one indeed  — is to protect people from being tossed out of their homes when times are tough. It’s an economic measure, and a merciful one at that, but it’s a square peg in the round hole of the existing law.   

The original ban ran until July 31, 2021. But before the ban expired, trade groups of landlords and realtors challenged it in the federal courts. Ultimately the original ban survived by the narrowest of margins. In late June, the U.S Supreme Court left the ban in place by a 5-4 vote, with the swing vote cast by Justice Brett Kavanaugh, who surprisingly sided with the three liberal justices and Chief Justice Roberts in an unlikely majority. Kavanaugh, however, was explicit about his rationale: the CDC’s moratorium plainly was illegal — the CDC had “exceeded its existing statutory authority,” as Kavanaugh wrote —  but he agreed to leave the moratorium in place solely because it only had a few weeks left to run and it would cause administrative chaos to end the program early.   

Kavanaugh also made this much clear: don’t come back here asking us to approve an extension of the moratorium, at least not without some new law passed by Congress first. “In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium,” he wrote. 

Well, the Biden administration went ahead and extended the moratorium anyway, even after Biden himself said it would likely be unconstitutional. (Here’s the “rule of law” part.) The Biden administration made a token effort to limit the extension “only” to areas “experiencing substantial and high levels of community transmission” — which encompasses about 80% of all counties in the United States. 

The eviction moratorium extension already has been challenged in federal courts and it (barely) survived the first round of scrutiny. But the district court judge, like Kavanaugh, signalled that the extension is likely unconstitutional. This lower-level judge, however, felt bound by the Supreme Court’s prior decision to keep the original moratorium in place. 

Last night, the Supreme Court predictably struck down the Biden administration’s eviction moratorium extension. The administration succeeded in at least buying some more time for the eviction ban. But it also intentionally took an action it understood to be unlawful to accomplish that, and to score symbolic political points.

I know any criticism of the eviction moratorium sounds cold-hearted. First: send complaints right over to Congress. Democrats control the Senate, the House, and the White House. They can fix this. Democrats blame the filibuster for jamming up the Senate. But Democrats have the power to change the filibuster rules, and thus far have declined to do so. A political party can’t tie its own hands and then complain that its hands are tied. Or, look at the CDC itself. It could have crafted an extension that applied narrowly to the most needy recipients, and not to nearly four-fifths of the entire country. A better-tailored moratorium would have stood a better chance of surviving legal scrutiny.

Nor is this about making a value judgment (or economic judgment) between renters and landlords, or about being nice or mean. Heck, if I ruled the world, I’d pass legislation and then issue a new moratorium in a heartbeat. But this is the point of “rule of law” — governmental action must be based on and consistent with the law, as it is. A principle isn’t a principle if it only applies when we like how it feels. What makes a principle a principle is that it applies regardless of the stakes and the parties and a favored outcome. Otherwise, it’s not a principle — it’s a preference.

To be clear: we’re talking about small potatoes compared to the Trump administration’s repeated and more serious affronts to the rule of law. Issuing a regulation that doesn’t square nicely with existing law and then knowingly undertaking a doomed fight in the courts, as the Biden Administration has done, isn’t great and is worth calling out. But it’s also nowhere close to overt obstruction of justice, or stoking of domestic terrorism, or trying to steal an election, to name just a few Trump administration lowlights.

We can say the Biden administration did the right thing (though landlords might not agree), and certainly the merciful thing, when it extended the eviction moratorium. But in this instance, we can’t say the administration abided by the rule of law.

Stay Informed,

Elie