Early in our current pandemic, I noted that historically public health crises had been critical moments for the expansion of the administrative state and the loosening of strictures on the excessive delegation of policymaking powers to expert and not-so-expert executive branch officials. I concluded that post:
There is no precedent for the measures that the government is taking now, and the constitutional backdrop has changed since courts first confronted these issues over a century ago. But historically public health emergencies have been moments in which courts have elaborated on the importance of giving government officials a free hand to respond to exigent circumstances as they think best and on the flexibility of constitutional limitations on government power.
Unfortunately, things have not generally been that different this time around. Executive branch officials in both the state and federal governments have grabbed extraordinary new powers over the course of this pandemic. Legislatures and judges at both the state and federal level have mostly let them do it.
We should be grateful for small blessings, and maybe the fate of the eviction moratorium is one. The CDC during the Trump administration made a legally outrageous power grab in issuing a nationwide, blanket eviction moratorium, and the Biden administration has been content to follow along. A bare majority of the justices of the Supreme Court appear unwilling to play along, and the Biden administration seems to have gotten the message—much to Nancy Pelosi’s chagrin. Despite Democratic control of the lawmaking branch of the government, the Speaker of the House would still seem to prefer that lawmaking be done by unelected bureaucrats. Perhaps the Biden administration will eventually give in to the pressure to do what the Court has pretty clearly signaled that it cannot lawfully do. If so, the silver lining might be that Justice Gorsuch would get the chance to write a nondelegation opinion for the Court.
There are plenty of constitutional and policy debates to be had on whether Congress could or should pass a statute creating an eviction moratorium, but is it really too much to ask that those debates occur in Congress and that we not add abuses of excessive delegation of discretionary authority to the mix?
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