Kavanaugh’s Bizarre Rationale
Things that make you go Hmmm.
POLITICO’s report “Supreme Court allows eviction ban to remain in place” left me puzzled.
The Supreme Court on Tuesday ruled to keep the federal eviction moratorium to in place, in a 5-4 decision in which Chief Justice John Roberts and Justice Brett Kavanaugh joined with liberals.
Kavanaugh wrote in Tuesday’s decision that he agreed with the lower-court ruling that the CDC had exceeded its authority but that its pending expiration swayed his thinking.
“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,” he wrote.
There’s more to the report but it doesn’t explain away the puzzling thing: Kavanaugh’s refusal to stop the CDC from continuing to exceed its authority on account of it promises to stop doing so in another month. What kind of judging is that?
I agree with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded
its existing statutory authority by issuing a nationwide eviction moratorium. See Utility Air Regulatory Group v.
EPA, 573 U. S. 302, 324 (2014). 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. See
Barnes v. E-Systems, Inc. Group Hospital Medical & Surgical Ins. Plan, 501 U. S. 1301, 1305 (1991) (Scalia, J., in
chambers) (stay depends in part on balance of equities); Coleman v. Paccar Inc., 424 U. S. 1301, 1304 (1976)
(Rehnquist, J., in chambers). In my view, clear and specific congressional authorization (via new legislation) would be
necessary for the CDC to extend the moratorium past July 31.
While I think the Alabama Association of Realtors and their clients have the better case on the merits, I get that getting emergency injunctive relief is a high barrier. And I generally applaud judges acknowledging administrative realities like the need for time to distribute funds.
In this case, though, a majority of the justices–the four dissenters plus Kavanaugh—believe the CDC is acting illegally and has been acting illegally for more than a year now. How, then, can that be allowed to stand on the basis that, well, it’s almost over?