Sunday, May 26, 2024
Hawai'i Free Press

Current Articles | Archives

Friday, August 27, 2021
SCOTUS Strikes Down CDC Eviction Moratorium And Leaves Tantalizing Clues About Takings
By Robert Thomas @ 11:48 PM :: 2666 Views :: Small Business, COVID-19

Untitled Extract Pages

SCOTUS Strikes Down CDC Eviction Moratorium And Leaves Tantalizing Clues About Takings

by Robert Thomas, Inverse Condemnation, August 26, 2021

The other shoe -- perhaps the most predictable shoe drop in legal history -- dropped yesterday, and the Supreme Court vacated the stay on appeal in one of the cases challenging the CDC's renewed eviction moratorium, meaning that the district court's judgment vacating the moratorium can go into effect. Alabama Ass'n of Realtors v. Dep't of Health and Human Svcs, No. 21A23 (Aug. 26, 2021) (per curiam).

The six-Justice majority, in an unsigned opinion, held that ""[i]t strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts." Slip op. at 1-2. Now remember, this is one of the cases challenging the CDC moratorium on non-takings grounds, primarily asserting that the CDC's authorizing statute does not authorize this sweeping an action (or if it does, the statute is unconstitutional). For a complete analysis of the opinion, see lawprof Ilya Somin's hot take: "Supreme Court Rules Against the Revised CDC Eviction Moratorium."

But takings mavens, take heart. The unidentified author of the per curiam opinion left us some tantalizing takings breadcrumbs even though this case does not contain a takings claim.

First, a citation to Loretto, noted above. As we noted, this isn't a takings case. Yet, the court seemingly went out of its way to point out that the inability to evict nonpaying tenants "intrudes" on the "fundamental" right to exclude. You know what is missing from this cite? That's right, Cedar Point Nursery. Interesting that the opinion goes back to Loretto when it decided (by the same six Justices) Cedar Point just a short while ago. In other words, don't count Loretto out entirely just yet. And what other case is missing from the opinion? That's right, any mention of Yee v. City of Escondido. You might think that a rent-control decision in which the right to exclude might also be referenced. But no. So what this tells us is that those takings claims against the various eviction moratoria (see here, here, and here, for example), just got a boost, because as we know. being able to allege a categorical taking is like the end of the yellow brick road for takings plaintiffs. 

Second, the Court cited the Steel Seizure Case for the idea that just because we're in an emergency doesn't mean that the rules don't apply.

It is indisputable that the public has a strong interest in combating the spread of the COVID–19 Delta variant. But our system does not permit agencies to act unlawfully even in pursuit of desirable ends. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 582, 585–586 (1952) (concluding that even the Government’s belief that its action “was necessary to avert a national catastrophe” could not overcome a lack of congressional authorization). -- Slip op. at 8.

his is a good reminder that the "character of the government action" being an emergency response (even if a reviewing court somehow finds a way to get around the categorical nature of the physical invasion and apply Penn Central) isn't some kind of get out-of-the-Fifth-Amendment-free card, as many courts have unfortunately held (as noted in our recent article on COVID takings). 

Maybe the Takings Clause is the deus ex machina after all...

(PS - we're thinking Chief Justice Roberts might have authored this one. Just a feeling.)

PDF: Alabama Ass'n of Realtors v. Dep't of Health and Human Svcs, No. 21A23 (U.S. Aug. 26, 2021) (per curiam)


TEXT "follow HawaiiFreePress" to 40404

Register to Vote


Aloha Pregnancy Care Center


Antonio Gramsci Reading List

A Place for Women in Waipio

Ballotpedia Hawaii

Broken Trust

Build More Hawaiian Homes Working Group

Christian Homeschoolers of Hawaii

Cliff Slater's Second Opinion

DVids Hawaii


Fix Oahu!

Frontline: The Fixers

Genetic Literacy Project

Grassroot Institute

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii ConCon Info

Hawaii Debt Clock

Hawaii Defense Foundation

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federation of Republican Women

Hawaii History Blog

Hawaii Jihadi Trial

Hawaii Legal News

Hawaii Legal Short-Term Rental Alliance

Hawaii Matters

Hawaii Military History

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Shippers Council

Hawaii Together


Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Navy League

Honolulu Traffic

House Minority Blog

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

July 4 in Hawaii

Land and Power in Hawaii

Lessons in Firearm Education

Lingle Years

Managed Care Matters -- Hawaii

Missile Defense Advocacy

MIS Veterans Hawaii

NAMI Hawaii

National Parents Org Hawaii

NFIB Hawaii News

NRA-ILA Hawaii


OHA Lies

Opt Out Today

Patients Rights Council Hawaii

Practical Policy Institute of Hawaii

Pritchett Cartoons

Pro-GMO Hawaii

Rental by Owner Awareness Assn

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

School Choice in Hawaii

Talking Tax

Tax Foundation of Hawaii

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii