Justice Breyer’s Eviction-Moratorium Dissent Would Turn the President into a Dictator

By Charles C. W. Cooke

Friday, August 27, 2021

 

There is simply no way of reading Justice Breyer’s dissent in last night’s eviction-moratorium case without arriving at the conclusion that Breyer, along with his two co-dissenters, believes that the executive branch of the federal government is permitted to do whatever the hell it wants providing that somewhere within the thicket that is the U.S. Code there exists a law that might be plausibly connected with their aim.

 

In striking down the CDC’s nationwide ban on evictions, the majority opinion carefully laid out the folly of Breyer’s approach. For a start, the majority noted, the fact that the statute in question explicitly enumerates certain powers militates against the idea that it should be considered all-encompassing:

 

The Government contends that the first sentence of §361(a) gives the CDC broad authority to take whatever measures it deems necessary to control the spread of COVID–19, including issuing the moratorium. But the second sentence informs the grant of authority by illustrating the kinds of measures that could be necessary: inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles. These measures directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself. The CDC’s moratorium, on the other hand, relates to interstate infection far more indirectly: If evictions occur, some subset of tenants might move from one State to another, and some subset of that group might do so while infected with COVID–19. See 86 Fed. Reg. 43248–43249. This downstream connection between eviction and the interstate spread of disease is markedly different from the direct targeting of disease that characterizes the measures identified in the statute. Reading both sentences together, rather than the first in isolation, it is a stretch to maintain that §361(a) gives the CDC the authority to impose this eviction moratorium.

 

Besides, the majority continued, even if the text were ambiguous, the sheer scope of the CDC’s claimed authority under §361(a) would counsel against the government’s interpretation.” Why? Because, as an elementary constitutional matter:

 

We expect Congress to speak clearly when authorizing an agency to exercise powers of “vast ‘economic and political significance.’” Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160 (2000)). That is exactly the kind of power that the CDC claims here.

 

And that “kind of power,” they recorded, has never been claimed before under that statute:

 

This claim of expansive authority under §361(a) is unprecedented. Since that provision’s enactment in 1944, no regulation premised on it has even begun to approach the size or scope of the eviction moratorium. And it is further amplified by the CDC’s decision to impose criminal penalties of up to a $250,000 fine and one year in jail on those who violate the moratorium. See 86 Fed. Reg. 43252; 42 CFR §70.18(a). Section 361(a) is a wafer-thin reed on which to rest such sweeping power.

 

The bottom lines: The rules of statutory construction do not allow this interpretation. Congress is expected to be precise when doling out broad powers to the executive — which, in any case, it is allowed to do only up to a certain point. The fact that we have a pandemic “does not permit agencies to act unlawfully even in pursuit of desirable ends.” And the CDC doesn’t get to make this call; Congress does. “If a federally imposed eviction moratorium is to continue,” the majority concluded, “Congress must specifically authorize it.”

 

Which all of us, including Joe Biden, already knew.

 

To which Justice Breyer countered: “If Congress had meant to exclude these types of measures from its broad grant of authority, it likely would have said so.”

 

This is an utterly astonishing way of looking at the law, which, if adopted widely, would amount to nothing less than an inversion of our written constitutional system and a recipe for exactly the sort of fused-power “tyranny” that James Madison warned us about in Federalist Papers 47 through 51.

 

In concert, Breyer proposed that because Congress wrote a statute that serves “to empower the CDC to take ‘other measures, as in [its] judgment may be necessary,’” much of what the CDC does during a crisis should be assumed to be fine. But, as the majority opinion makes clear, when taken together these arguments would lead to a de facto executive-branch dictatorship:

 

Indeed, the Government’s read of §361(a) would give the CDC a breathtaking amount of authority. It is hard to see what measures this interpretation would place outside the CDC’s reach, and the Government has identified no limit in §361(a) beyond the requirement that the CDC deem a measure “necessary.” 42 U. S. C. §264(a); 42 CFR §70.2. 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?

 

Equally ugly is Breyer’s suggestion that because the law specifically allows the government to do some pretty sweeping things, then other sweeping things that it doesn’t allow the government to do should be assumed to be acceptable, too:

 

The per curiam also says that Congress must speak more clearly to authorize the CDC to address public health crises via eviction moratoria. But it is undisputed that the statute permits the CDC to adopt significant measures such as quarantines, which arguably impose greater restrictions on individuals’ rights and state police powers than do limits on evictions.

 

Naturally, this is absurd. If the Supreme Court were to assume that the existence of a “restriction on individual rights and state police powers” in a given federal law implied that all lesser restrictions on individual rights and state police powers were acceptable, there would be no point in our writing down the rules. The federal government is permitted to execute people. Does that mean it can arrest me for wearing an ugly shirt?

 

There is simply no way of squaring these two approaches to the law. The majority’s approach holds that the text of the law matters; that there are discrete and enforceable limits on the reach of each branch; that if legislators are not clear in their purpose, the tie goes to liberty; and that the courts have a role to play in maintaining the constitutional separation of powers. The dissent, by contrast, envisions a system in which the executive branch can do whatever it wants providing that Congress has (a) passed a law that is tangentially related to its action, and (b) hasn’t categorically ruled a given element out.

 

This decision should have been 9–0. That it was not should be a source of great shame for Breyer, Sotomayor, and Kagan — along with anyone in America who continues to enjoy their work.