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.

Michael D. Ramsey
Latest posts by Michael D. Ramsey (see all)

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



Featured Articles

On the Constitution, history, the founders, and analysis of current events.

featured articles


Tenther Blog and News

Nullification news, quick takes, history, interviews, podcasts and much more.

tenther blog


State of the Nullification Movement

232 pages. History, constitutionality, and application today.

get the report


Path to Liberty

Our flagship podcast. Michael Boldin on the constitution, history, and strategy for liberty today

path to liberty


Maharrey Minute

The title says it all. Mike Maharrey with a 1 minute take on issues under a 10th Amendment lens. maharrey minute

Tenther Essentials

2-4 minute videos on key Constitutional issues - history, and application today


Join TAC, Support Liberty!

Nothing helps us get the job done more than the financial support of our members, from just $2/month!



The 10th Amendment

History, meaning, and purpose - the "Foundation of the Constitution."

10th Amendment



Get an overview of the principles, background, and application in history - and today.