20% Off Is Still 100% Unconstitutional: Realtors Argue that Novel Iteration of CDC Eviction Moratorium Is as Lacking in Authority as its Precursor

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, No. 20-cv-03377 (D. D.C.). 


Emergency!  Last spring plaintiff realtors and related organizations were successful in persuading the U.S. District Court for the District of Columbia that the September, 2020, Order of the Centers for Disease Control imposing a national moratorium on evictions was without authority.  The court found no authority for such a sweeping measure in the public health law that served as the order’s premise, nor could the court find any legislative delegation of authority that would permit the Centers for Disease Control to criminalize rental property evictions. 

The D.C. District Court vacated, yet stayed, its order pending review.  The U.S. Court of Appeals for the District of Columbia Circuit refused to disturb the federal district court’s determinations, and the United States Supreme Court denied emergency review.

The denial of review, however, came with Justice Kavanaugh’s concurring caveat: he agreed that the eviction moratorium order was unconstitutional but sensed that it was best to let the order lapse of its own accord at the end of July, as the Centers for Disease Control represented to the Supreme Court that the moratorium would not be extended further. 

Post-Moratorium Hubbub in the Executive and Legislative Branches.  The President of the United States stated publicly that he had been advised that the eviction moratorium was unconstitutional. A valid moratorium would require, as Justice Kavanaugh pointed out, legislative authority, which Congress failed to enact. 

The President begged the states to disburse the $45,000,000,000 that the federal government had provided in assistance to troubled tenants but which appears to have been bogged down in bureaucracies.  

This Time It’s Different.  On August 3, 2021, the Centers for Disease Control issued a new order prohibiting evictions in areas deemed to be highly affected by a variant of the contagious Covid-19 virus that prompted the initial moratorium.  This “Delta” variant, the Centers for Disease Control has predicted, is highly contagious and its threat to interstate transmission justifies federal intervention on a limited basis, which the Centers for Disease Control now sets at about 80% of all counties nationally or 90% of all rental housing in the United States.

Lack of Constitutional Authorization Remains. Plaintiffs argue that the fundamental lack of authorization for the Centers for Disease Control’s new order persists: no geographic or statistical tinkering can imbue the order with the constitutional soundness it lacks.  

It’s Not the Principle of the Thing, It’s the Money. That the Executive Branch is in accord with the view that the prior order was unconstitutional  makes the new order all the more curious except that the President has stated that he hopes that litigation will buy some time to move relief to intended recipients.  

Fuzzy Math.  The U.S. Department of Health and Human Services, of which the Centers for Disease Control is a component, has opposed emergency relief now because, the government argues, the plaintiffs’ assertion that the precedent it finds in Justice Kavanaugh’s concurrence is not precedent at all.  The government argues that a concurrence that can be seen as aligned with those who would have granted relief cannot transform the minority of judges who would have granted review into a majority.  

As Then, So Too Now.  Defendants argue that as there is no Supreme Court precedent binding the district court the law requires that the D.C. Circuit Court of Appeals opinion on the stay controls.  The district court should not disturb its earlier stay, the government argues, but the court must recognize that its earlier vacatur of the first CDC order is of no moment, either, as circumstances have so changed that the court’s initial conclusions would not apply now.  

Deference, Please. Moreover, the Centers for Disease Control submit that the district court should abstain from any action to permit the Solicitor General of the United States to determine whether to seek emergency review in the D.C. Court of Appeals or the United States Supreme Court.

There May Be More to Come. The plaintiffs may file a reply to the government’s opposition by August 6, but at this time none is of record.

Centers for Disease Control Order Dated August 3, 2021:

CDC Eviction Order

Realtors’ Emergency Motion:

Emergency Motion to Enforce the Supreme Court’s RulingyDefendants’ Opposition

Defendants’ Opposition to Plaintiffs’ Emergency Motion

Order of U.S. Supreme Court Denying Review of Eviction Moratorium

Order Denying Application to Vacate Stay June 29, 2021

The Wheels on the Bus Go Round the Supreme Court No More: Certiorari Denied in Challenge to Transit Authority’s Ban on Religious Advertisements

Archdiocese of Washington v. Washington Metropolitan Transit Authority, No. 18-1455.  Petition for Certiorari denied on April 6, 2020.  


In connection with the Court’s denial of the petition for certiorari, Justice Gorsuch, joined by Justice Thomas, issued a statement which leaves no doubt that the two would conclude that the transit authority’s current ban on religious advertising on its buses violates the First Amendment as it is reflects government engagement in impermissible viewpoint discrimination. 

Certiorari was denied because Justice Kavenaugh was involved in the case when he served on the U.S. Court of Appeals for the District of Columbia Circuit.  As he could not participate in reviewing a case he was involved in, deciding the case with less than a full complement of justices appeared unwise.

The decisions below violate Supreme Court precedent, Justice Gorsuch noted, as the Court has determined that “religion” includes both subject matter and viewpoint.  Once subjects are opened for discussion, religious views cannot be suppressed:

…[O]nce the government allows a subject to be discussed, it cannot silence religious views on that topic…[O]nce the government declares Christmas open for commentary, it can hardly turn around and mute religious speech on a subject that so naturally invites it… [The government] cannot do is what it did here—permit a subject sure to inspire religious views…and then suppress those views. The First Amendment requires governments to protect religious viewpoints, not single them out for silencing.

–Statement respecting denial of certiorari at pp. 2- 3.

JustLawful aside:  The great benefits of opinions accompanying denials of certiorari is that they not only serve to foretell the future, at least as to some justices’ views, but they also offer a brevity that is scarce in current jurisprudence.

2020 04 06 Certiorari Denied 18-1455 Archdiocese of Washington v. Washington Metropolitan Area Transit Authority (04_06_2020)

Fundamental Speech Freedoms Ill-Served by Denial of Petitions for Certiorari in “Climate Change” Defamation Cases: Justice Alito Dissents

National Review, Inc. v. Michael E. Mann, No. 18-1451 and Competitive Enterprise Institute v. Michael E. Mann, No. 18-1477.  Petitions for Certiorari denied November 25, 2019.


To encourage the free flow of ideas and debate on matters of public concern, the First Amendment insulates statements of opinion from liability in defamation unless those opinions can be shown to be premised on demonstrably false assertions. 

If Jones says, “Smith could not defend my dog,” Jones cannot be sued if Jones has simply offered a sardonic appraisal of Smith’s advocacy.  If, however, Jones makes this statement when Smith has in fact won Fido’s acquittal, Jones may be liable in defamation, for his opinion is grounded in a falsehood. 

Unsurprisingly, yet apparently quite unpleasantly, the eruption of a firestorm of controversy about the soundness of the scientific evidence concerning climate change, accompanied by no small number of challenges to the character of its proponents and opponents, prompted scientist Mann to sue two conservative opponents of his research in defamation.   

No trial has been held as yet:  Defendants the National Review and the Competitive Enterprise Institute asked that the Supreme Court consider who — judge or jury — should decide the contours of defamation claims, and how that should be accomplished.

The petitions for certiorari were denied on November 25, 2019.

Determinations about what is opinion and what is demonstrably true or false may be conclusive of liability in defamation cases, at least insofar as opinion is not actionable.  Special statutes reflect the goal of promptly resolving, through motions practice, claims concerning comment on matters of public interest. 

The capacity of the statutory framework to suit constitutional ends may become more intensive complex where the integrity of matters of scientific inquiry are concerned, as testing the truth of asserted facts and hypotheses is the very purpose of scientific inquiry.  Few would suggest that pretermitting discussion would serve any good end.

Just how much foundation in fact and how much hyperbole may be tolerated before speech loses First Amendment protection and becomes actionable in defamation generates no end of controversy, not the least component of which is who may decide such questions:  judge or jury. If these are questions of law, a judge may decide. If these are questions of fact, a jury may decide, and a judge ought not invade a jury’s fact-finding province.

The time and toil involved in preparing for trial is substantial, making the decision about deciders of great significance.  Yet notwithstanding advocates’ proffered arguments that there is a need for Supreme Court review of these questions, the Court has declined, to the disappointment of Justice Alito, who wrote separately in dissent from denial of the petitions of certiorari.  Justice Alito noted the critical nature of addressing these questions in order to ensure the preservation of First Amendment freedoms, which serve to guarantee that all may “speak freely and without fear” on matters of public concern.

 Confidence in constitutional guarantees is not well served by the uncertainty that is sustained by failure to resolve these questions, Justice Alito has offered.  This is especially so, he has noted, where the Court in recent years has not shied away from addressing First Amendment concerns in regulatory matters.  

While it is true that no rights have been conclusively forfeited in these cases because of the interlocutory nature of the appeal and the availability of trial, Justice Alito perceives the burdens of litigation and trial in themselves as potential impediments to participation in commentary on matters of public concern.  Justice Alito would have the Court step in to resolve such issues sooner rather than later or not at all.  

The Alito commentary:

18-1451_2019 11 25 Alito Dissent from Denial of Certiorari

The Opinion of the District of Columbia Court of Appeals that prompted petitions for certiorari:

Inst v. Mann, 150 A.3d 1213 (D.C., 2016)

 

 

 

Supreme Court Justices to Consider Reviewing Whether Transit Authority’s Ban on Religious Advertising on Buses Violates First Amendment

Archdiocese of Washington v. Washington Metropolitan Transit Authority, et al., No. 18-1455.  Scheduled for Conference October 1, 2019.


Today marks the Supreme Court’s official ‘back to work’ day, exemplified by the characterization of the first ensemble of the justices for the term as “the long conference,” in which the accumulated and prospective business before the Court demands extensive and intensive attention.

Among the many petitions of note is the Archdiocese of Washington’s (ADW) request that the Court grant its petition for certiorari to determine whether the Washington Metropolitan Transit Authority’s (WMATA) prohibition on religious advertisements on its buses violates the First Amendment. 

The dispute between the church and state entities arose in 2017, when WMATA refused to permit publication of a “Find the Perfect Gift” advertisement intended for public viewing in anticipation of the Christmas holiday.  Although similar advertisements had been accepted and were widely seen within the WMATA ridership area, in 2015 WMATA promulgated regulations banning “Issue” messages, including political and religious views. WMATA reasoned that such messages stirred controversy and management of public concerns in reviewing complaints consumed an inordinate amount of resources. 

The Archdiocese argues that the Court’s precedent compels the conclusion that WMATA rules impermissibly suppress speech, notwithstanding the opinion of the United States Court of Appeals for the District of Columbia Circuit to the contrary.

The Archdiocese argues that WMATA’s rules cannot survive review under either the First Amendment or the Religious Freedom Restoration Act.  As WMATA has admitted that it permits messages with secular messages but not with religious messages, WMATA has engaged in impermissible viewpoint discrimination.

The Archdiocese disputes  the position that the exclusion of the “subject” of religion avoids constitutional offense.  All manner of commentary about Christmas is permitted except religious commentary: this is exactly what is meant by viewpoint discrimination.

Particularly where religion enjoys specific constitutional protections, the imposition of speech burdens or prohibitions is unacceptable.  Adopting the government’s view would carry with it the potential to banish religious speech from all forums, a constitutionally unacceptable result.

The Washington Metropolitan Transit Authority disputes the Archdiocese’s argument, asserting that its regulation, intended to avoid controversy and its associated costs, is a reasonable viewpoint neutral subject limitation applicable to a non-public forum.  WMATA counters the church’s arguments about speech suppression with the prediction that if the regulation is struck down, then all advertisements opposing religion will be required to be accepted, to the detriment of the government’s ability to manage its transit authority and to the detriment of its ridership.  

WMATA cautions the court that adopting the Archdiocese’s position would destroy the forum analyses applied to permissible and impermissible restrictions on speech in public forums.  

WMATA argues that there is no Religious Freedom Restoration Act claim to be reviewed, as RFRA does not apply to the states, and WMATA is an inter-state project comprising of the District of Columbia, Maryland and Virginia. 

JustLawful Prognostication:  “Definitely maybe.”

The Court could grant certiorari if it determines it important to weed the thicket of controversy and misunderstanding that have attached to analyses of permissible speech limitations, including forum analyses.  There is little doubt that this is a significant issue on both speech and religious freedom points.

It is equally possible that, given that the appellate court decision in issue concerns preliminary relief and not a determination on the merits, that the Court will avoid tackling these important concepts in the absence of a more developed record.  

An eleventh hour tipping point may have emerged.  Just days before the long conference, the Archdiocese submitted a supplementary brief arguing that a recent decision by the Third Circuit striking down regulations not dissimilar from the WMATA rules creates a split in circuit decisions making more urgent the Supreme Court’s grant of certiorari.

Briefs in Support and Opposition to Petition for Certiorari

2019 05 19 Petition for Writ of Certiorari

2019 07 22 WMATA Opposition to Peittion for Certiorari

2019 08 06 Reply of Archdiocese v WMATA

2019 09 26 ADW Supplemental Brief in Support of Petition for Certiorari

Amicus Submissions

2019 06 20 Amicus Brief Foundation for Moral Law

2019 06 21 Amicus Brief Christian Legal Society et al

2019 06 21 Amicus Brief of National Association of Evangelicals et al

Opinions of D.C. Circuit and U.S.D.C. D.C.

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth. & Paul J. Wiedefeld, 910 F.3d 1248(Mem) (D.C. Cir., 2018)

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d 314 (D.C. Cir., 2018)

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 281 F. Supp. 3d 88 (D. D.C., 2017)

Opinion of the Third Circuit Court of Appeals

Ne. Pa. Freethought Soc’y v. Cnty. of Lackawanna Transit Sys.No. 18-2743 (3rd Cir., 2019)