I hate being right sometimes, and this is one of those times. As I feared, Brett Kavanaugh’s cowardice in not vacating the stay on the original eviction moratorium is coming back to haunt property owners across the country.
In my previous pieces on this topic, I noted that Kavanaugh had the chance to join the conservatives, vacate the stay on the original moratorium, and do so in a way that clearly prevents any future issuance given how blatantly unconstitutional this theft of property is. Instead, perhaps in some misguided attempt to get the left to love him, the Trump-appointed justice joined the liberals, allowing the moratorium to continue and expire.
By doing so, Kavanaugh created a path for Joe Biden and the CDC to essentially game the system, bankrupting more landlords before any new challenge can make it through the courts. Biden admitted yesterday that is their plan.
Here’s what I said when this issue first came up (see Brett Kavanaugh’s Gelatinous Spine Green-Lights More Government Theft).
Yet, when Kavanaugh had the chance to join his conservative colleagues to strike this nonsense down and put in place a precedent to protect people from government tyranny, he didn’t have the spine to do it. Instead, he took the easy way out by letting the moratorium continue and expire, green-lighting the same gambit to be tried again. Yes, Kavanaugh indicated he’d rule against the CDC the next time this issue came up, but that could take months if another moratorium is put in place. By that point, the damage will have already been done, and you can bet the government won’t be writing checks to make those landlords whole.
Lo and behold, that is exactly what is happening. The DOJ is now running through the door left wide open by Kavanaugh’s decision and they are using the argument he set up for them.
This is what Justice Kavanaugh wrought by denying the application for a stay.
“The Supreme Court *denied* [Plaintiff’s] application for relief.” pic.twitter.com/QrNSvPbciE
— Gabriel Malor (@gabrielmalor) August 6, 2021
There were a lot of people on the right who were insistent that Kavanaugh’s concurrence would carry weight in stopping a future moratorium. I never thought that because he made clear he was speaking only in his personal capacity and his actual ruling to let the moratorium continue contradicted his claims that the CDC had overstepped its authority. That provided more than enough ambiguity for the administration to move forward.
Because of that, property owners are now facing another bout of litigation to protect their rights (and their financial situations) when this could have been handled right the first go around. Unfortunately, there’s no guarantee Kavanaugh won’t melt again if this crosses his path again.
The big question is whether Kavanaugh will find the order issued on Tuesday different than the one he rejected in June and supported by more evidence that it falls within the CDC’s statutory power. https://t.co/sEbKpy69LP
— National Law Journal (@TheNLJ) August 6, 2021
If Kavanaugh flounders at this point, especially after the Biden administration directly spat in his face regarding his prior concurrence, then you can go ahead and shutter the conservative judicial project. No one is going to take the Federalist Society and their “vetted” lists seriously again if that is the result.
Unfortunately, even if Kavanaugh does the right thing the second go around, irreparable damage will have already been done. Even if the moratorium is stopped, it’s going to take time. This was completely avoidable and foreseeable. If Kavanaugh honestly thought he could let the original moratorium expire and not have his ruling be taken advantage of, he’s not nearly as smart as I’ve been assured he is. After the way he was treated during his confirmation, Kavanaugh, of all people, should know that the left does not operate in good faith.
Yet, here we are, watching the gears of the court system slowly grind away when none of this had to happen if Kavanaugh had just done his job in the way he indicated he would when he was nominated.