The government’s favorite argument when it loses in court


The government really does not like losing in court. But instead of accepting and implementing the court’s decision, he often tries to justify ignoring the broader implications of a decision, applying it only to the case in question.

In March, the Pacific Legal Foundation dealt a blow to the Centers for Disease Control and Prevention (CDC) with our victory in Skyworks v. CDC– who felt the CDC did not have the power to enforce a nationwide moratorium on evictions prohibiting landlords from evicting tenants during the pandemic.

This turned out to be the first in a series of rapidly succeeding rulings that ruled that the CDC exceeded its limits – and ultimately resulted in the Supreme Court ruling in August that removed any doubt about the illegality of the moratorium on evictions.

We should all breathe a sigh of relief that the eviction moratorium litigation has played out this way, because if the CDC had prevailed in its argument that it could impose any regulations the CDC director deemed necessary to control the spread. COVID-19, we could very well face federal restrictions on business closures and various other warrants or prohibitions that infringe our freedoms.

As the Sixth Circuit Federal Court of Appeal put it, the government’s interpretation of the Public Health Services Act would have granted “the director of the CDC quasi-dictatorial powers for the duration of the pandemic, with the power to shut down entire industries as freely as she could. prohibit evictions.

Finally, the government has hoisted the white flag and is no longer enforcing the moratorium on evictions. But let’s go back to March when we won in Skyworks, in a notice from the Northern Ohio District. At that point, the question everyone was asking – indeed the very first question The Cleveland Plain Merchant asked me when I heard we had won – was: what does this mean for owners in Ohio?

I gave the kind of worded answer journalists hate. They wanted the result. And all I could say was, “It’s complicated. We can’t really say yet what that means because the ruling simply hasn’t addressed this issue. “

All that was clear was that we had achieved relief for our customers, which of course was our goal. But we knew very well what the Department of Justice (DOJ) would say. And in no time, the DOJ issued a press release, outlining the government’s preferred argument when losing a case like this:

“The Ministry of Justice respectfully disagrees with the March 10 decision of the District Court of Skyworks v. CDC conclude that the moratorium exceeds the statutory authority of the CDC… In any event, the decision only applies to the specific complainants in this case. It does not prohibit the application of the moratorium on CDC evictions to other parties. For other landlords who rent to covered people, the CDC’s eviction moratorium remains in effect.

It was typical of GM. In fact, the DOJ has a publicly available memorandum outlining its general policy of always arguing that a loss like this is limited to the parties to the case.

But the absurdity of this argument is that the government could continue to enforce clearly illegal regulations, or face ruinous sanctions or the threat of criminal conviction. So, in the government’s view, it can continue to coercively enforce compliance with illegal regulations unless everyone under the sun sues and wins – which is of course impossible for individuals. (and many small businesses) with limited means.

As the CDC renewed its moratorium on evictions in early August, four federal district courts held that the CDC lacked statutory authority, with a Sixth Circuit Court of Appeals opinion confirming this view and strong signals from the Eleventh Circuit Court of Appeals and the United States Supreme Court that CDC was overstepping its authority.

The great weight of authority was therefore clearly on the side of the owners. However, unless covered by an existing judgment, it was still not advisable to violate the moratorium on evictions. That is why we have requested an emergency injunction on behalf of our clients in Chambless v. CDC– which was then pending on appeal before the Fifth Circuit. And if the Supreme Court had not clearly expressed its opinion in its decision of August 26, 2021, homeowners would likely still be in limbo nationwide.

Needless to say, this was all very frustrating for the owners who eagerly watched the CDC lose deal after deal, but disheartened to see the government (until the end of August) relentless in enforcing this illegal moratorium. I remember being on a radio show with a host who was just incredulous that the government could continue to enforce the moratorium after losing case after case. She kept asking me, “How is this compatible with the rule of law?” “

Once again, my answer was more legal than it would have liked because in truth it is complicated.

There are brilliant scholars on both sides of this debate. But, for my part, I think the best view is that when a court decides that a settlement is illegal, it should be understood as “set aside” on a universal basis — not just for the parties in that. action — because if a regulation is illegal, it cannot have any legal effect against anyone.

Professor Mila Sohoni of the University of San Diego Law School makes convincing arguments on this issue in her scholarship and in testimony before the Senate Judiciary Committee. And at the end of the day, it’s a question the Supreme Court will likely have to resolve, unless Congress acts to clarify the Administrative Procedure Act.

So in the end, we decided that this was an important issue and sought clarification from the District Court in Skyworks as to whether its March 10 decision overturned the CDC’s moratorium only for our customers (as the government has supported), only for North Ohio District homeowners, or universally. The court ruled that the decision only rescinded the moratorium for our clients. But had the CDC not waved the white flag, we would have placed more emphasis on this issue on appeal, as it is an extremely important open question and of practical importance to anyone facing contested regulations. Indeed, it is an issue that we will have to fight another day.

But for now, we can be proud to know that we have been instrumental in dismantling the illegal CDC regime – and possibly anticipating other national CDC orders. Yet there is no rest in the ongoing struggle for freedom. Indeed, we have a lot of work to do to curb the administrative state.


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