A Legacy Of Bad Judging To Come
The Trump era will be destructive for awhile. Hold on.
Take a recent ruling in an Ohio case where a bunch of landlords, property managers, and housing developers sued to invalidate the CDC Moratorium on evictions.
The federal moratorium on evictions was sort of enacted by Trump but not really. He couldn’t give two cents if anyone got evicted.
Yet, there was a CDC moratorium put in place in September 2020 and it has been extended several times now, the last two by President Biden’s CDC.
But in Ohio recently, a federal judge, J. Phillip Calabrese, ruled that the CDC Moratorium was not authorized by Congress. I don’t know much about Calabrese, and it doesn’t matter because his ruling makes no legal or factual sense.
The law he rules on is called The Public Health Services Act of 1944. It is federal law passed by Congress in 1944 which amended federal law dating back to 1789.
It is pretty clear that the law gives the CDC the authority to take actions to keep the public safe such as an eviction moratorium even though it does actually say “eviction moratorium.” It is also pretty clear that authority was provided by Congress. Here’s the text of some of that law:
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.
Judge Cabrese makes the astonishing claim that the law did not provide the CDC the authority to take an action such as an eviction moratorium because, among other things, it is referring to —” inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals…etc…”
Anyone with any common sense, living in the real world, would read the law much differently. The law is referring to some actions that “may” be necessary. That clause is not a limitation on the law; it is just part of the law.
But the next part of the law is the crusher for the opinion and exposes the nastiness of Calabrese’s opinion. This excerpt of the law lists the kinds of diseases that the law is intended to be addressed by the CDC’s actions. Note the following:
b) Severe acute respiratory syndromes, which are diseases that are associated with fever and signs and symptoms of pneumonia or other respiratory illness, are capable of being transmitted from person to person, and that either are causing, or have the potential to cause, a pandemic, or, upon infection, are highly likely to cause mortality or serious morbidity if not properly controlled. This subsection does not apply to influenza.
The law actually uses the term — “severe acute respiratory syndromes” which is exactly what Covid-19 is, a SARS. Yet, somehow Judge Calabrese asserts in his opinion that by if the moratorium were upheld, this “would authorize action with few, if any, limits — tantamount to creating a general federal police power.”
This is hardly the case. For one, the moratorium doesn’t even stop all evictions. It applies to evictions based on non-payment of rent related to Covid-19 in some way. It should also be noted that many people during this pandemic, financially ruined already, have packed up and left the units they were renting.
One would think the presence of that specific language in the law would make Calabrese realize what Congress was trying to do when it enacted the Public Health Act of 1944.
But Calabrese, it appears, is lost in that strange legal concept known as “textualism.” His opinion is trying to figure out what Congress was trying to do by looking at the text and not looking at the text of the law and considering the actual purpose of the law (which is obvious). It is pretty clear Congress was extending broad power to the government to take an action such as it did with the moratorium to address a public health crisis and the law actually says as much.
How is that to be known?
Well, in 1944, experts wrote about the law. Calabrese wasn’t on earth yet. Neither was I. Public Health Reports, a publication devoted to reporting on legislative developments in the public sector, stated in 1944 right after the law’s passage, that the law’s purpose was “tackling public health problems individually and directing all available resources to the eradication of widely prevalent diseases which place an unnecessary burden on the health and economy of the nation.”
If that line is not describing the pandemic we now know as Covid-19 my name must be Godzilla.
Yet, this is no surprise. This has been the agenda of the Republican Party since the New Deal was passed. The New Deal, much to their disappointment, actually worked and many of its program still work today. It didn’t mean the country should be 100 percent socialist but the New Deal had success worth noting.
This law — the CDC moratorium — worked and works. It is functioning right now as it should across the country in most states — directing available resources to address a public health problem. Calabrese essentially didn’t want to uphold the power of the government to act so he wrote a decision that fit an ideology not legal and factual reality.
Luckily, most judges have not followed Calabrese down his odd path of judicial review. Calabrese is a judicial outlier in that regard.
Most judges have upheld the CDC order and stopped evictions for now and are allowing rental assistance programs to step in and help tenants who have fallen behind in their rent. They recognize the importance of the order. They know the purpose of the order and that the CDC has the power, in certain instances, to protect the health of the nation (that would include people).
But alas, the American death spiral goes on.