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Saturday, February 27, 2021

Universality and the CDC eviction moratorium (Updated)

Judge Barker issued a declaratory judgment in Terkel v. CDC, declaring the extension of the CDC's eviction moratorium constitutionally invalid. This creates a split with district courts in Georgia and Louisiana, as Ilya Somin describes. But the Terkel court did not issue an injunction, accepting the government's representations that they would "respect" the DJ; it added that the plaintiffs could "seek an injunction should defendants threaten to depart from the declaratory judgment."

As with all of this, the question becomes scope and what the government can do now. The plaintiffs are one individual and five property-management companies, in an action not certified as a class action. Saying the CDC would “respect” and not "depart" from the DJ should mean respect it as to the parties and that it "departs" it only by attempting to enforce against the plaintiffs, which it is unlikely to do. It should not stop the CDC from enforcing the policy against anyone else, certainly outside of Texas, who lacks the protection of a judgment.

The risk for the CDC in enforcing is that Judge Barker will get mad, issue an injunction, and make it universal. This would be wrong on several levels, beyond the usual normative incorrectness of universality. It would be incoherent for the judge to issue a universal injunction in furtherance of a party-particularized DJ.

Even if universal injunctions are appropriate in some cases, this would not seem to be such a case. This is not the DAPA/DACA cases, in which Texas was worried that non-enforcement outside of Texas causing undocumented persons to migrate into the state looking for driver’s licenses. It is not the sanctuary-city cases, in which allowing enforcement as to non-party jurisdictions injured them by shrinking the pool of available funds. It is not an immigration case, in which there is a perceived command that immigration law be uniform. The only conceivable argument for universality requires every injunction to be universal--the CDC policy is categorical and applies to all landlords who may want to evict people. Unfortunately, that is the argument I would expect Judge Barker to accept.

This case exemplifies when universality is inappropriate. Injunctions must provide the plaintiffs complete relief. These plaintiffs get that if they are protected against enforcement. The enforcement or non-enforcement of the CDC policy against anyone other than these managers does not affect the enforcement or non-enforcement of the policy against these plaintiffs.

Update: DOJ filed a response to a notice of supplemental authority on Terkel in the District of the District of Columbia, arguing, in part, that the Terkel judgment does not extend beyond those plaintiffs and does not prohibit enforcement of the policy against others, including the plaintiffs in the D.C. case (which includes the Alabama Association of Realtors). (H/T: Josh Blackman).

Second Update: DOJ announced an appeal in Terkel with a press release stating: "The decision, however, does not extend beyond the particular plaintiffs in that case, and it does not prohibit the application of the CDC’s eviction moratorium to other parties. For other landlords who rent to covered persons, the CDC’s eviction moratorium remains in effect."

The Court avoided universality in cases challenging Trump Administration policies, because the majority declared the ban valid in the cases in which universality was most central, notably the travel ban. Justices Thomas and Gorsuch have been unequivocal that the judgment in a case cannot extend beyond the parties. It will be interesting to see what they do with a Biden Administration policy that offends their pre-New Deal constitutional sensibilities.

Posted by Howard Wasserman on February 27, 2021 at 05:24 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink

Comments

Extremely important these days. But we have another problem (as has been so well analyzed by Ilya Somin in the related article):

We have here three cases. That one of Texas that has dealt solely with the interstate commerce issue. While in the case of "Chambless" the court has dealt with the nondelegation doctrine. Finally, in the case of "Brown" the court has focused rather on statutory arguments.

Yet, in preliminary injunction terms, one prevailing argument may render it universal. For, the factual configuration, is the same in every case indeed (one may assume).

But, theoretically, it would be better, to deal with every possible legal and constitutional argument, before issuing such critical universal preliminary injunction.

Thanks

Posted by: El roam | Feb 27, 2021 6:20:50 PM

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