Sign up to save your podcasts
Or
Share CDC's Eviction Moratorium is Invalid; The Case Which Must Not Be Named
Share to email
Share to Facebook
Share to X
Share to email
Share to Facebook
Share to X
Or
CDC's Eviction Moratorium is Invalid; The Case Which Must Not Be Named
CDC's Eviction Moratorium Declared Invalid
NCLA Litigation Counsel, Caleb Kruckenberg joins Mark in a discussion regarding this week's decision in Skyworks, LTD., et al., v. Centers for Disease Control and Prevention, et al.
The U.S. District Court for the Northern District of Ohio ruled that the nationwide moratorium issued by the Centers for Disease Control and Prevention (CDC) stopping residential evictions exceeded the agency’s statutory authority.
NCLA filed an amicus brief in November 2020 on behalf of the National Apartment Association and the National Association of Residential Property Managers in support of the challenge brought by Plaintiffs. The court’s ruling closely tracked NCLA’s argument and stated that the statute could not be extended to give CDC the kind of power necessary to overrule state law. The court then declared the moratorium order invalid—nationwide.
The Plaintiffs, in this case, made the same arguments that NCLA presented in Brown v. CDC NCLA’s challenge to CDC’s Nationwide Eviction Moratorium Order. The Ohio federal court took aim at the decision in Brown denying a preliminary injunction, saying that decision had “the feel of adopting strained or forced readings of the statute, stretching to rationalize the governmental policy at issue.” The court concluded, “That is not a proper methodology of statutory interpretation. Nor is it the proper role of the courts. Although the Court reaches a different result than the Brown … Court[], the language of the statute compels that result.”
NCLA has appealed the Northern District of Georgia’s decision in Brown v. CDC to the Eleventh Circuit U.S. Court of Appeals. We will encourage the appellate court to follow the reasoning of today’s opinion. NCLA congratulates the Pacific Legal Foundation, which served as lead counsel for the Plaintiffs, on this terrific outcome.
Read more about the case here:
https://nclalegal.org/amicus-brief-skyworks-ltd-et-al-v-centers-for-disease-control-and-prevention-et-al/
The Case Which Must Not Be Named
Later in the episode, Mark and Caleb discuss Aposhian v. Wilkinson, one of NCLA's cases challenging ATF's bump-stock ban.
A majority en banc panel in the U.S. Court of Appeals for the Tenth Circuit voted 6-5 on March 5th, to vacate the court’s Sept. 4, 2020 order granting en banc rehearing of Aposhian v. Wilkinson. It also reinstated the court’s deeply flawed May 7, 2020 opinion, which invoked the Chevron doctrine to deny NCLA client Clark Aposhian’s appeal of his challenge to the bump stock ban imposed by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in March of 2019.
As a result, Chief Judge Tymkovich, writing for himself and four other dissenting members of the Court, compared Chevron to “Lord Voldemort”—a character from the Harry Potter series considered to be the most powerful and dark wizard of all time—because litigants must now be afraid of even mentioning the case. “Under the panel majority’s theory, a party that challenges an agency’s interpretation of a rule is forced to dance around Chevron, even where the government has not invoked it. Chevron becomes the Lord Voldemort of administrative law, ‘the-case-which-must-not-be-named.’ And litigants bold enough to expressly oppose Chevron in their briefing will be left guessing whether their reference to the case was fleeting or perfunctory enough to avoid making an invitation. All the while, courts are given a troubling amount of freedom when deciding whether to use Chevron—discretion that will dictate the outcome in many cases.”
In his appeal, Mr. Aposhian asked whether the Chevron doctrine applies when the agency does not invoke it and whether the Chevron doctrine may apply to criminal regulations given that the rule of lenity requires courts to construe ambiguous laws away from imposing criminal liability. By allowing ATF to create new criminal liability here, according to the dissenting judges, “the Final Rule violates the separation of powers” and the “delegation [of Congressional power] raises serious constitutional concerns by making ATF the expositor, executor, and interpreter of criminal laws.”
The case also raised key issues about whether an agency can rewrite a federal criminal law. Mr. Aposhian argues that the National Firearms Act is not ambiguous and bump stocks are not machineguns, which is the same position the Department of Justice had taken in every prior machine gun possession case it has prosecuted in the last 30+ years. The dissenting judges agree, “The statute’s plain meaning unambiguously excludes bump stocks.” ATF’s rule, however, rewrites the federal law and declares that every person who lawfully purchased a bump stock is now a federal felon.
NCLA will continue to litigate this case, which may include seeking review in the U.S. Supreme Court.
Read more about the case here: https://nclalegal.org/aposhian-barr/
See omnystudio.com/listener for privacy information.
View all episodes
By Administrative Static
5
1313 ratings
CDC's Eviction Moratorium Declared Invalid
NCLA Litigation Counsel, Caleb Kruckenberg joins Mark in a discussion regarding this week's decision in Skyworks, LTD., et al., v. Centers for Disease Control and Prevention, et al.
The U.S. District Court for the Northern District of Ohio ruled that the nationwide moratorium issued by the Centers for Disease Control and Prevention (CDC) stopping residential evictions exceeded the agency’s statutory authority.
NCLA filed an amicus brief in November 2020 on behalf of the National Apartment Association and the National Association of Residential Property Managers in support of the challenge brought by Plaintiffs. The court’s ruling closely tracked NCLA’s argument and stated that the statute could not be extended to give CDC the kind of power necessary to overrule state law. The court then declared the moratorium order invalid—nationwide.
The Plaintiffs, in this case, made the same arguments that NCLA presented in Brown v. CDC NCLA’s challenge to CDC’s Nationwide Eviction Moratorium Order. The Ohio federal court took aim at the decision in Brown denying a preliminary injunction, saying that decision had “the feel of adopting strained or forced readings of the statute, stretching to rationalize the governmental policy at issue.” The court concluded, “That is not a proper methodology of statutory interpretation. Nor is it the proper role of the courts. Although the Court reaches a different result than the Brown … Court[], the language of the statute compels that result.”
NCLA has appealed the Northern District of Georgia’s decision in Brown v. CDC to the Eleventh Circuit U.S. Court of Appeals. We will encourage the appellate court to follow the reasoning of today’s opinion. NCLA congratulates the Pacific Legal Foundation, which served as lead counsel for the Plaintiffs, on this terrific outcome.
Read more about the case here:
https://nclalegal.org/amicus-brief-skyworks-ltd-et-al-v-centers-for-disease-control-and-prevention-et-al/
The Case Which Must Not Be Named
Later in the episode, Mark and Caleb discuss Aposhian v. Wilkinson, one of NCLA's cases challenging ATF's bump-stock ban.
A majority en banc panel in the U.S. Court of Appeals for the Tenth Circuit voted 6-5 on March 5th, to vacate the court’s Sept. 4, 2020 order granting en banc rehearing of Aposhian v. Wilkinson. It also reinstated the court’s deeply flawed May 7, 2020 opinion, which invoked the Chevron doctrine to deny NCLA client Clark Aposhian’s appeal of his challenge to the bump stock ban imposed by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in March of 2019.
As a result, Chief Judge Tymkovich, writing for himself and four other dissenting members of the Court, compared Chevron to “Lord Voldemort”—a character from the Harry Potter series considered to be the most powerful and dark wizard of all time—because litigants must now be afraid of even mentioning the case. “Under the panel majority’s theory, a party that challenges an agency’s interpretation of a rule is forced to dance around Chevron, even where the government has not invoked it. Chevron becomes the Lord Voldemort of administrative law, ‘the-case-which-must-not-be-named.’ And litigants bold enough to expressly oppose Chevron in their briefing will be left guessing whether their reference to the case was fleeting or perfunctory enough to avoid making an invitation. All the while, courts are given a troubling amount of freedom when deciding whether to use Chevron—discretion that will dictate the outcome in many cases.”
In his appeal, Mr. Aposhian asked whether the Chevron doctrine applies when the agency does not invoke it and whether the Chevron doctrine may apply to criminal regulations given that the rule of lenity requires courts to construe ambiguous laws away from imposing criminal liability. By allowing ATF to create new criminal liability here, according to the dissenting judges, “the Final Rule violates the separation of powers” and the “delegation [of Congressional power] raises serious constitutional concerns by making ATF the expositor, executor, and interpreter of criminal laws.”
The case also raised key issues about whether an agency can rewrite a federal criminal law. Mr. Aposhian argues that the National Firearms Act is not ambiguous and bump stocks are not machineguns, which is the same position the Department of Justice had taken in every prior machine gun possession case it has prosecuted in the last 30+ years. The dissenting judges agree, “The statute’s plain meaning unambiguously excludes bump stocks.” ATF’s rule, however, rewrites the federal law and declares that every person who lawfully purchased a bump stock is now a federal felon.
NCLA will continue to litigate this case, which may include seeking review in the U.S. Supreme Court.
Read more about the case here: https://nclalegal.org/aposhian-barr/
See omnystudio.com/listener for privacy information.