August 25, 2021:-Attorney Wayne Detring of Franklin, Tennessee, is not someone I had heard of before yesterday but, as a result of his letter to the editor of the Wall Street Journal, he is going on my Christmas card list.

Attorney Detring pointed out that after President Biden repeatedly said that there was no legal basis for extending his predecessor’s eviction moratorium (and then went ahead and did it anyway) the administration’s lawyer put his name to a court document arguing that, contrary to his client’s repeated and accurate public statements, the moratorium is lawful. That sort of conduct verges on the unethical, wrote Attorney Detring (see below).

Here is the President saying that the courts had ruled that the previous CDC eviction moratorium was unconstitutional and that although most constitutional scholars think that a new one would be “unlikely to pass constitutional muster” a few think it might and by the time a challenge gets through the courts the order will have served its purpose.

Clearly unconstitutional

The court decision President Biden was referring to was the one that Judge Dabney Friedrich of the U.S. District Court for the District of Columbia issued back in June. “The question for the Court is a narrow one,” wrote Judge Friedrich.

“Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not.”

The reason has nothing to do with the wording or extent of the CDC’s eviction moratorium. The reason is simpler than that. As an executive branch agency, the CDC may only act within the parameters that Congress has set for it, and Congress has never granted the CDC the authority to ban people who own rental property from going to court when tenants do not pay rent. The CDC does not have, and never has had, that authority.

At the end of June, Supreme Court Justice Brett Kavanaugh stated that a moratorium extension would need clear and specific congressional authorization via new legislation.

Nevertheless, when Congress did not enact any such clear and specific authorization, President Biden issued another eviction moratorium through the CDC.

New order

The Alabama Association of Realtors quickly challenged the new moratorium.

In response, the Solicitor General filed a reply in which he argued that Congress had given the CDC authority via 42 USC 264(a), enacted in 1944, which provides that:

“The Surgeon General, 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 Surgeon General 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.”

According to the Acting Solicitor General of the United Stats, Brian H. Fletcher, by way of this provision in the 1944 statute Congress gave the head of the CDC discretion to “prevent the movement of persons to prevent the spread of communicable disease.” To be fair, he was quoting the Court of Appeals for the District of Columbia when it rejected the request from the Alabama Association of Realtors to vacate the stay of Judge Friedrich’s previous order. But at the time the Solicitor General filed the reply it was already clear that five justices of the Supreme Court of the United States share the opinion of Judge Friedrich that the 1944 statute, which (prior to President Trump) had never been used in this way, does not confer the necessary authority.

Professional Conduct

If you think there ought to be a rule against this sort of thing, there is, as Attorney Detring points out:

“Rule 3.1 of the American Bar Association’s Model Rules of Professional Conduct prohibits lawyers from bringing or defending a proceeding unless there is a basis in law or fact for doing so. Rule 11 of the Federal Rules of Civil Procedure states that by signing or submitting a pleading, an attorney certifies that it is not presented for any improper purpose, such as to ‘cause unnecessary delay.’ Rule 11 also provides a process for sanctioning violators… Ordinary practicing attorneys would be in grave danger of sanctions for filing a pleading knowingly unsupported by law or fact, and by admittedly filing the pleading for the purpose of delay.”

Good point, I think.

Discussion

President Biden’s conscious decision to issue an unlawful order will be one of topics up for discussion at an event MassLandlords has scheduled for September 8 titled “Are Eviction Moratoriums the New Normal?” The other points up for discussion:

Courtroom challenges to the CDC moratorium;

  • The “state moratorium 2.0” currently pending the Massachusetts Legislature; and
  • What litigation might be brought to bear against a new Massachusetts eviction moratorium.

I will be one of the three speakers, together with Attorney Jordana Roubicek Greenman and Attorney Richard Vetstein. For the event link, click here.

What do you think?

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s