On Tuesday the Centers for Disease Control (CDC) (an executive agency) issued a new eviction moratorium, substantially similar to the one that expired last week.  Previously, in Alabama Association of Realtors v. DHHS, four Justices of the Supreme Court would have enjoined the prior moratorium as exceeding statutory authorization, but five Justices refused.

Justice Kavanaugh wrote separately observing that he agreed with his four colleagues that the CDC “exceeded its existing statutory authority by issuing a nationwide eviction moratorium” and that “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31”; but he declined to vote for an injunction in light of the moratorium’s impending expiration.

After initially doubting it had authority to issue a new moratorium without congressional approval (for obvious reasons), the Biden administration reversed course and issued the new one.  (Josh Blackman comments here).

At Bloomberg, Noah Feldman — though sympathetic to the moratorium on policy grounds — doubts this is a good strategy.  That may be so.  But he adds:

[T]he Kavanaugh statement indicates that there are five votes to hold the new ban unconstitutional — and that it was therefore unlawful for Biden to [issue it].

From an originalist perspective, I disagree. There nothing “unlawful” about the President’s action.  The President is entitled to act on his view of the law, until the Supreme Court (or a lower court) directly rules otherwise.  A Supreme Court order (or lower court order) is binding on the President, but the speculations of individual Justices are not (even if they add up to five), nor are our predictions about what five Justices may do in any particular case in the future (even if we are pretty sure of the answer).  The Supreme Court isn’t an oracle announcing the law; it determines the law as necessary to resolve cases before it. That’s all that Marbury‘s understanding of judicial review requires. (It’s true that Cooper v. Aaron complicates this analysis, but Cooper was not an originalist opinion).

Here, there was no Court order enjoining the prior moratorium.  The new moratorium is slightly different, but even if it were not, the President isn’t bound by Justice Kavanaugh’s observations about how Justice Kavanaugh might rule in the future.

UPDATE: Howard Wasserman has some similar thoughts at Prawfsblawg: Embrace the judicial departmentalism, criticizing this editorial in the Washington Post (which describes the new moratorium as coming “at the expense of the rule of law”).  And the Wall Street Journal editors agree with the PostPresident Biden’s Lawless Eviction Ban.

It may be that the moratorium is lawless and counter to the rule of law.  But that’s not (as the Post and the Journal editors apparently believe) because five Justices said so in nonbinding observations.

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

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