SCOTUS strikes down eviction ban.

The Supreme Court made its case.
Isaac Saul Aug 30, 2021
I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum — then “my take.”

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Today’s read: 11 minutes.

The Supreme Court rules on the eviction ban. Plus, a question about Trump’s role in the Afghanistan withdrawal.

Photo: Steve Rhodes

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Quick hits

  1. A U.S. drone strike targeting a car carrying suspected ISIS-K suicide bombers in Kabul may have killed ten members of one family, including several children. (The details)
  2. About 250 Americans are still in Afghanistan awaiting evacuation, according to the State Department. (The remaining)
  3. The European Union is expected to prohibit non-essential travel from the U.S., citing the spread of the Delta variant in the United States. (The announcement)
  4. Hurricane Ida, one of the strongest storms to ever hit the United States, has left more than one million people without power — including all of New Orleans. (The storm)
  5. Sirhan B. Sirhan, the man who assassinated Sen. Robert F. Kennedy in 1968, has been recommended for parole. (The decision)

What D.C. is talking about.

Evictions. On Thursday, the Supreme Court voted 6-3 to block President Joe Biden’s most recent eviction moratorium extension. Earlier this year, the court had ruled that the administration couldn’t extend the ban on evictions, which was put in place last March by the Centers for Disease Control and Prevention (CDC) to address the Covid-19 pandemic without congressional authorization (we covered that here). Then, after protests from progressive Democrats, the CDC issued a new ban despite Biden conceding that he did not believe it could withstand scrutiny from the courts (we covered that here). Now, the Supreme Court has indeed blocked the latest renewal of the moratorium.

The CDC issued its initial eviction ban by citing the 1944 Public Health Service Act, which states the following:

The [CDC], with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

In an 8-page opinion, the court said the CDC had exceeded its authority with the latest ban, which did not apply to the entire country but only to counties where Covid-19 was the most widespread (because of rising cases in so many places, that ended up being some 90 percent of U.S. counties).

“The C.D.C. has imposed a nationwide moratorium on evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination,” the opinion said. “It strains credulity to believe that this statute grants the C.D.C. the sweeping authority that it asserts.”

Approximately 3.5 million people say they will face eviction in the next two months, according to the Census Bureau. Congress has allocated $46.5 billion in emergency rental assistance, 89 percent of which has yet to be distributed.

In response to the ruling, Rep. Cori Bush (D-MO), who slept on the steps of the Capitol building to protest the expiration of the ban earlier this month, said “the Supreme Court failed to protect the 11 million households across our country from violent eviction in the middle of a deadly global pandemic.”

Below, we’ll take a look at some reactions from the left and right. Then my take.


What the left is saying.

The left is worried about the court’s ruling, saying it is putting millions at risk of eviction and is the latest in a slew of ideologically driven rulings by the court.

The Washington Post editorial board said it’s not too late to avoid a wave of evictions.

“Congress allocated $46.5 billion in emergency rental assistance for people impacted by the pandemic. Lawmakers approved $25 billion of that as far back as December,” the board said. “Yet the Treasury Department reported Wednesday that states still had distributed only $5.1 billion of that $25 billion by the end of July, seven months after Congress okayed it. Treasury tried to put a positive spin on that news, pointing out that the number of households the program helped increased 15 percent last month, to 340,000, and that money was flowing to needy people: More than 60 percent of those receiving aid had incomes at or below 30 percent of their area’s median. Yet states still handed out only $1.7 billion, a tiny uptick from June.

“The problem is not the Treasury Department; it is the states and localities that are supposed to be distributing the aid,” they added. “Some states have had to set up distribution systems from scratch. Others have been overwhelmed with applicants. Technical glitches have plagued application websites. Tenants and landlords lacking Internet access have had a harder time applying. And questions about documenting income and other qualifications for aid have slowed applications. Treasury emphasized once again Wednesday that states need not delay aid while applicants gather all their documents. It also threatened laggard states, saying that those failing to distribute rental aid quickly may lose their funding next month. It should not come to that. States should commit to helping desperate renters, their lives upended by forces far beyond their control, and helping landlords, too, many of whom depend on the rent for their own livelihood.”

In The Nation, John Nichols said Cori Bush is once again trying to save the eviction moratorium.

“While others debated over who should take responsibility for extending the moratorium as it expired in late July, Bush demanded action. She brought a sense of urgency to the fight, recalling her own experience with evictions. And she won headline-grabbing support from Senator Bernie Sanders and Representative Alexandria Ocasio-Cortez. In so doing, Bush gave voice to a national outcry over the prospect that as many as 3.6 million households could face eviction orders within two months. They are among the 11 million Americans who have fallen behind on rent payments during the course of the Covid-19 pandemic, according to an analysis of US Census Bureau data by the Center for Budget and Policy Priorities.”

Now, Bush has “presented ‘immediate options’ to avert an eviction crisis,” Nichols said. “They include proposals for the House to reconvene for an emergency vote on HR 4791, a bill, introduced by House Financial Services Committee chair Maxine Waters, to extend the moratorium through December 31, as well as a plan to have the House amend the Public Health Service Act to provide the Department of Health and Human Services with the legal authority to mandate that evictions stop until the pandemic is officially over.”

In Jacobin Magazine, Branko Marcetic said it was a lawless power grab.

“The text is pretty clear. The law says the CDC can put in place and enforce regulations that prevent infectious diseases from spreading from state to state, examples of which include inspection, pest extermination, and other measures the CDC decides are necessary — a broad mandate that gives the agency wide latitude to act to contain a killer pandemic,” Marcetic wrote.

“The court’s ‘textualists’ and ‘originalists’ didn’t bother to determine the original spirit behind the language they ruled on, and they didn’t take a plain, commonsense reading of the unambiguous text,” Marcetic added. “They made a brazenly ideological argument with the sole objective of defending property rights, whether that means landlords being able to kick people out of their houses or companies being free from legal mandates forcing them to make deliveries in a pandemic, public health be damned. Though some have tried to paint this Supreme Court as surprisingly moderate, this is yet another major ruling from what’s already proving to be an extremely right-wing court.”


What the right is saying.

The right supports the decision, arguing the court followed the obvious interpretation of the law and that it’s time for the moratorium to end.

The Wall Street Journal editorial board said “President Biden told Democrats that the Supreme Court was likely to shoot down his two-month extension of a ban on rental evictions, and he was right.”

“Mr. Biden knew this but used the extension to buy time to deflect criticism from the left after a previous CDC extension expired July 31. While the Justices didn’t quote Mr. Biden, the forceful opinion makes clear they noticed how he abused their forbearance. ‘The CDC has imposed a nationwide moratorium on evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination,’ the Court explains. ‘It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.’ Under the government’s argument, there’s no limiting principle to CDC authority.

“No regulation premised on the 1944 law ‘has even begun to approach the size or scope of the eviction moratorium,’ the Court adds. And even if the text were ambiguous, the government’s interpretation would violate the principle that Congress must ‘speak clearly when authorizing an agency to exercise powers of ‘vast economic and political significance,’” the board concluded. “The CDC power grab is so obvious that the decision should have been 9-0. But the three liberal Justices dissented in part on grounds that the Court should have required a full briefing and argument before lifting the stay. This would have made the Justices accomplices to Mr. Biden’s legal gamesmanship.”

In Fox News, Jonathan Turley wrote that the Biden administration “has racked up a long line of losses in federal courts in what is one of the worst records in the first six months of any modern presidency.”

“Last week, the Supreme Court ruled 6-3 to strike down President Biden's renewal of the controversial eviction moratorium,” Turley wrote. “It was the second time that a majority of justices declared the moratorium as unconstitutional but, as in other areas, the Biden Administration has become openly and chillingly dismissive of such legal considerations. The unconstitutionality of the moratorium was never in serious doubt but Biden admitted that he ignored the advice of his own White House counsel and virtually all of [the] legal experts consulted by the White House.

“Biden expressly discarded with the constitutional considerations in favor of political expediency, even though it meant spending massive federal funds without legal authority,” he added. “It is a lawless attitude that’s becoming a signature for this administration, which has continued to unilaterally end policies without complying with federal laws despite equally clear authority from the Supreme Court.”

In Reason Magazine, Josh Blackman said “the Biden Administration suffered two significant losses in the span of 48 hours.”

“The Roberts Court does not seem to be going easy on the new President. So far, Biden has received a remarkably rough reception. And these rulings do not bode well for the many other cases trickling up [from] the lower courts,” Blackman wrote. “This case doesn't immediately end the eviction moratorium. District Courts throughout the country will have to enter final judgments barring the enforcement of the eviction moratorium. They should do so promptly, though some may drag their feet. A few may even resist. (I said it.)… the Biden Administration's gamble backfired, big league. Indeed, the Court provides a very narrow construction of 42 U.S.C. § 264, an essential public health law. In future disasters unknown, the federal government will have its hands tied by this decision.”


My take.

Like most Supreme Court decisions, this one is a fascinating look at how the law can be interpreted for one’s own benefit. This entire case essentially rests on this language (emphasis mine) in the 1944 Public Health Act: “For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.”

The court has essentially made the case that “other measures” can only be interpreted here, but a ban on evictions that impacts millions of people is not even relatively in the scope of the other examples stated in the policy (fumigation or pest extermination, for example). And if it were intending to grant such broad authority to a federal agency, Congress would have to say so explicitly. Opponents of the ruling have said “other measures” encompass just that — any other measures the CDC sees fit. And during this once-in-a-lifetime global pandemic, those “other measures” should rise in significance to meet the moment.

But to me, the ruling seems right. I’ve already made my case that it was time for the eviction ban to end, but even with the Delta variant spreading rapidly, I don’t see the legal justification — or how it is tenable — for millions of people to continue to not face any threat of eviction if they aren’t paying rent. Even if we’re to view the moratorium as a Covid-19 stopper, it’s clear the virus is spreading easily now via family gatherings, bars, restaurants, etc. — I’m not even sure to what degree the moratorium is helping. Regardless, it seems well beyond the scope of what the CDC should legally be allowed to do. As the justices asked, “Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable? Require manufacturers to provide free computers to enable people to work from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work?”

The actual debate here should be about what action Congress should take.

Which brings me to the point: this is about a failure of government more than whether this court ruling is “right” or not. Congress passed billions of dollars in aid to address renters, along with stimulus checks and enhanced unemployment benefits for those who lost their jobs. The federal government’s response to the pandemic, frankly, has been remarkable and appropriate. But as The Washington Post editorial board points out, there has been an utter failure at the state level to get tenants — or even landlords, for that matter — the assistance they need.

If progressive Democrats want to have a federal eviction moratorium, they need to draft legislation — which they basically have already — and then whip up the votes to pass it. If the CDC wants to prevent homelessness and evictions that lead to more Delta variant spread and overrun hospitals, they could focus their attention on getting at-risk renters vaccinated and continue to push their contacts at the state level to distribute funds already allocated. At the end of the day, though, it’s going to be up to local governments to get their acts together and eviction judges to navigate situations where a tenant who has been failed by the government deserves leniency.


Your questions, answered.

Q: When history books are written about the American withdrawal from Afghanistan, will Trump be viewed as a non-factor, a visionary whose plans were badly executed, or Neville Chamberlain who made a deal with the devil and got played?

— Eric, Orlando, Florida

Tangle: It’s an excellent question. I think the one thing he won’t be viewed as is a “non-factor.” I don’t mean to reply in a way that comes off as a copout, but I think it could be a mix of “visionary” and “made a deal with the devil.” History, much like the news, is seldom as unbiased as people want it to be.

To me, the answer to your question lies almost entirely with what the next 10 to 20 years look like in Afghanistan. The Taliban is clearly trying to sell itself as some more modern, new, less brutal regime than it was in the 1990s. A lot of people aren’t buying that, and neither am I. If their rule turns barbaric the moment U.S. soldiers leave, and Afghanistan is besieged by another 20 years of civil war and human rights atrocities, I think the deal Trump made with the Taliban will look pretty terrible and short-sighted in the historical context — a deal that boxed out the Afghan government and essentially set up the Afghan army to fold.

If, on the other hand, the Taliban eventually move toward a shared power arrangement with the Afghan resistance, continue to allow things like girls’ schools, manage to solicit financial aid from global powers and oversee at least spates of peace (most importantly by reducing terrorist attacks), then Trump could be seen as a visionary. Basically, the question is whether Afghanistan descends further into chaos or if the Taliban actually manage to govern and oversee relative peace among the fractured groups they now rule.

To me, the odds of the latter happening are slim. But, to your point, history will be the judge.

If you want to submit a question to Tangle, though, you can simply reply to this email and write in. You can also fill out this form.


A story that matters.

In a Chicago custody hearing, a judge’s decision is shaking up the debate about Covid-19 vaccine mandates and how far they can go. Rebecca Firlit joined a virtual hearing with her ex-husband expecting the proceedings to focus on child support. Instead, Cook County Judge James Shapiro asked Firlit about her vaccination status. Firlit told the judge she had not been vaccinated because of past adverse reactions to vaccines, and because her doctor had advised her against it. The judge then made an unprecedented decision: he told her she couldn’t see her son until she was vaccinated. “Judges in other states have granted lesser sentences to defendants who opt to get vaccines, or mandated the vaccine as a condition of release from prison for some inmates,” The Washington Post reported. But this appears to be a first. (The story)


Numbers.

  • 11.4 million. The number of people living in households behind on rent, according to a recent Census Bureau survey.
  • 27%. The percentage of U.S. adults who said they had trouble paying for usual household expenses in the last 7 days.
  • 1 in 106. Your odds of dying from a fall.
  • 1 in 8,571. Your odds of dying from the accidental discharge of a gun.
  • 1 in 31,030. Your odds of being hospitalized with Covid-19 if you are fully vaccinated.
  • 1 in 137,698. Your odds of dying of Covid-19 if you are fully vaccinated.
  • 1 in 138,849. Your odds of dying of a lightning strike.

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Have a nice day.

The number of people in the world without electricity has dropped from 1.2 billion to 759 million worldwide, and much of that gap was closed by “installing small solar systems designed to power a village, farm or even a single home.” Across the developing world, farmers, homeowners and businesses are using the cheap secondhand solar market to help cover gaps in power that are left by government and utility companies. The thriving market has some believing that reuse and resale — not recycling — is the best way to manage the growing waste issue in the renewable energy markets. (Bloomberg, subscription)

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Isaac Saul

I'm a politics reporter who grew up in Buck County, PA — one of the most politically divisive counties in America. I'm trying to fix the way we consume political news.

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