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The Supreme Court’s recent decision in the Alabama Association of Realtors case, summarily holding invalid the Biden administration’s effort to extend a federal eviction moratorium without benefit of an act of Congress, seems indisputably correct, as does its earlier decision also holding an executive moratorium unauthorized. But both opinions would have gained persuasiveness from reliance on or at least reference to earlier relevant opinions by some of our greatest justices.
The only pre-1964 opinion seriously relied upon was the concurring opinion of Justice Jackson in the Youngstown steel industry seizure case of 1952, Youngstown Sheet & Tube Co., which was cited but not quoted. On the property rights involved, the Supreme Court cited only Lindsay v. Normet and the Loretto case, in both of which the Supreme Court was sharply divided. Its technique and frame of reference reminds this writer of the observation by the British poet Philip Larkin, that in the view of the younger generation, sexual intercourse was invented in 1964.
The first Supreme Court decision involving the invocation of emergency powers to expand the rights of tenants was Justice Holmes’s opinion for a sharply divided court in Block v. Hirsh (1921). Holmes noted that in local legislation “machinery was provided to secure for the landlord a reasonable rent.” This was a feature largely absent from Biden’s moratoria. Two years under this regime, forbidding evictions for other causes during a period of housing shortage was held not to exceed “a point at which the police power ceases and leaves only that of eminent domain.”
A federal law enacting a mortgage moratorium was invalidated by a unanimous Supreme Court in the Louisville Stock Bank case in 1935. In his opinion, Justice Brandeis described five state-defined property rights that were impaired by legislation, allowing the mortgagor to pay interest at a reduced rate for six years or to pay a reasonable rent sufficient to defer the landlord’s expenses for five years. The rights impaired were the right to retain a lien, to realize on the property, to determine the time of sale, to bid at the sale, and to have rents collected pending the sale: “resort must be had to proceedings by eminent domain so that through taxation the burden of the relief afforded in the public interest will be borne by the public.”
In the earlier Home Building & Loan Association v. Blaisdell case of 1934, a 5 to 4 decision, Chief Justice Hughes upheld state legislation staying foreclosure for a period of less than two years, conditioned on payments of rents sufficient to pay taxes and other expenses. None of these cases suggested that an essentially rent-free moratorium threatening to bankrupt landlords would be acceptable. In none of them was the terms of a moratorium determined by an executive purportedly invoking delegated power; they were determined by the legislature.
Justice Breyer argued for the dissenters in Alabama that a delegated power to impose quarantines authorized an eviction moratorium since an eviction might give rise to interstate movement. The protest of the majority opinion that this would constitute a limited public health statute with a delegation of unparalleled breadth seems well-taken. It would be, to quote Justice Cardozo’s opinion in the Schechter case, one of “delegation run riot; no such plentitude of power is capable of transfer.”
The extent of derangement of normal values produced by the Covid-19 epidemic on people who like to present themselves as liberals and civil libertarians is really quite extraordinary. The last portion of the Breyer opinion on supposed dangers to public health from invalidation of the Biden moratorium is little more than an exercise in virtue-signaling, and virtue-signaling of a class-bound character. The only “liberal” opinion that seems similarly deranged is the opinion of Justice Kennedy for himself and Justices Breyer, Ginsberg, Kagan, and Sotomayor in the Obergefell case, with its explicit denial that religion and morality are legitimate sources of law, and its disregard of the frieze referencing religious lawgivers at the top of the Supreme Court building, as well as the declaration on the first page of Holmes’s The Common Law: “the law is the external deposit of our moral life.” But, as Learned Hand once said, “you cannot make figs from thistles, or judges from persons whose outlook is limited by parish or class.”
George Liebmann is president of the Library Company of the Baltimore Bar and the author of numerous works on law and history, most recently Vox Clamantis In Deserto: An Iconoclast Looks At Four Failed Administrations (2021).
* This article was originally published here
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