The Eviction Moratorium and Constitutional Norms

Mark Tushnet

The moratorium of evictions ordered by the Centers for Disease Control expired on Saturday and liberal Democrats are reportedly furious at President Biden for not doing enough to extend it. The CDC had relied upon a quite aggressive interpretation of its statutory authority in imposing the moratorium, and five justices of the Supreme Court indicated their view that the agency lacked statutory authority to do it. (Four of them dissented from an order refusing to vacate a stay of an injunction against enforcing the moratorium and Justice Kavanaugh indicated that he agreed with the challengers’ legal argument about the CDC's power  but voted against vacating the stay, which would have put the injunction into effect, solely because the moratorium was due to expire.)

President Biden apparently directed the relevant lawyers to attempt to find some other authority for extending the moratorium. It’s not clear from reporting how extensive the search was (I don’t fault the reporters for that; figuring this out depends upon getting deep into the legal weeds.) I’ll assume that they were directed to look as widely as possible: the CDC’s enabling legislation, elsewhere in the statute books, or in the President’s inherent Article II power. I’ll assume that the lawyers came up dry (they certainly did with respect to the CDC, but continuing references to a possible executive order suggest that they didn’t find anything anywhere else in the U.S. Code authorizing the president to impose an eviction moratorium.)

What could/should President Biden do/have done under these circumstances? He’s been given legal advice that a course of action that is politically attractive (and that, for all we know, he would love to take) doesn’t have a defensible legal grounding. And, as a matter of prediction – “what the courts will do in fact” – we should be quite confident that were he or the CDC to rely on the CDC’s prior, aggressive legal interpretation of its authority, an injunction would issue in short order. And, similarly as a matter of prediction, we can be reasonably confident that, though it might take a bit more time, extending the moratorium by relying on creative or aggressive interpretations of other statutes or of the President’s inherent power would also be enjoined.

Still, at the moment there’s no injunction in place. And, indeed, there’s not even an authoritative holding by the Supreme Court asserting that the CDC lacks statutory authority to impose the moratorium. As a matter of constitutional/political morality/law, what should we say about a decision extending the moratorium in these circumstances?

One view is a strong version of Holmes’s “bad person” theory of law’s content. All that matters are the sanctions the courts will attach to the course of action. And, in these circumstances, no sanctions will attach to extending the moratorium: without an injunction in place, no one is “defying” the courts by acting in a manner inconsistent with firmly grounded predictions about what the courts will say about the law when they get a chance. And, acting on this view, extending the moratorium would be (from the President’s perspective) morally valuable because it would give some renters a few more weeks of security in their housing.

Another view is the Cooper v. Aaron perspective. On that view the President would act “unlawfully” (in some sense – probably, “would properly be subject to law-based criticism”) were he to impose the moratorium and wait to be enjoined (as he almost certainly would be) before retreating. That perspective has powerful traction in today’s legal culture (who wants to be seen as “like” Governor Faubus?), but it’s not clear to me that it’s legally tenable. At the very least the costs and benefits of waiting to be enjoined are rather different: In Faubus’s case, continuing turmoil and denial of the core constitutional value of racial equality (as interpreted by the Supreme Court in Brown v. Board of Education) on the cost side and maintaining racial segregation (and federalism, if you want to throw that in) on the “benefit” side; in the eviction moratorium case, a few more weeks of relief from the threat of eviction on the benefit side and financial costs to landlords and the rule-of-law value of respecting limits on the CDC’s statutory power on the cost side. I don’t think its out of bounds to say that the net of costs and benefits might differ decisively in the two cases – or, to be more straight-forward, it seems to me that President Biden would have a fair argument that he wasn’t acting like Governor Faubus in waiting until he actually faced an injunction.

The preceding are “legal” perspectives. Is there another perspective available, from constitutional morality or norm-adherence that goes beyond “mere” compliance with the law? One prominent view among liberals these days is that there are norms – “forbearance” is the best label (from Levitsky and Ziblatt) – counseling (in the best version) that unless one faces objectively disastrous consequences one should not infrequently (or perhaps, though less plausibly, generally) refrain from pressing one’s constitutional/legal positions to their limits. (So, for example, Senator McConnell should not have processed Justice Barrett’s nomination as quickly as he did even though [absent a complicated and in my view unavailing argument to the contrary] he and the Senate had the sheer constitutional power to do so.)

The division between congressional liberals, who apparently want President Biden to do something, and his lawyers, who apparently have told him that (in the predictive sense at least) he lacks legal authority to act, brings out these differences in perspectives. I think it’s worth observing that over the past several years it’s been mostly liberals who have argued against norm-breaking (and are continuing to do so in connection with court and filibuster reform proposals), but in this case at least they seem to be willing to forgo relying on the forbearance norm. ("Don't let 'mere technicalities' get in the way of doing the right thing!")

I’m a skeptic about the proposition that adherence to norms other than those inscribed in the Constitution is necessary to preserve the core values of constitutionalism. So, were I talking to President Biden, which of course I’m not, I’d say “Go for it if you think that the political benefits of imposing the moratorium exceed the political flak you’ll get – and you will get some – from ‘acting like Governor Faubus.’”

But – and I think what follows is the true takeaway – all this stuff is really complicated.