Amicus Brief: Darby Development Company, Inc., et al. v. United States

AMICUS BRIEF SUMMARY

In this case, dozens of rental property owners assert that the Centers for Disease Control and Prevention (CDC) Eviction Moratorium effected either a compensable taking or an illegal exaction under the Fifth Amendment. NCLA argues that a dismissal of owners’ takings claims will encourage the government to take private property worth billions of dollars, for public use.

Although the Supreme Court ultimately held the Eviction Moratorium to be an illegal exercise of executive power, at no point was it merely an action by a few rogue unauthorized agents. To the contrary, the Eviction Moratorium resulted from and continued because of affirmative steps taken by each of the three branches of the government. 

The Executive Branch created the Eviction Moratorium and extended it numerous times through executive orders. The Legislative Branch extended the Eviction Moratorium, and members of the Congressional majority used their position to exert political pressure on the Executive Branch to continue the policy even after the legislatively authorized period had expired. The Judiciary, when called upon to adjudicate the lawfulness of these moratoria, blessed the policies as lawful, denying injunctive relief in part because they thought and assured litigants that there would be future opportunities to seek compensation.

In short, Congress and the Executive Branch worked hand-in-glove to create and extend the Moratorium, and the Judiciary allowed it to continue even after determining its unlawfulness. Therefore, as NCLA argues, the rationale for protecting the public fisc from rogue actors ceased to apply when each branch of the tripartite government knowingly and purposefully contributed to, and legally endorsed, the taking of private property.