As you may know, during the current pandemic, since the enactment of the so-called “CARES Act” in March 2020, there has been in effect, in various forms, a federal “moratorium” on evictions of rental tenants from their apartments. Thus some landlords have now gone well over a year without getting paid what they are owed, and with no access to any legal remedy.
The most recent version of the “moratorium” expired on July 31 (Saturday). This version had been promulgated by the CDC on its own authority, without specific authorization from Congress. On Sunday (August 1) the Democratic Congressional leadership called on President Biden to extend the moratorium. From The Hill, August 2:
Top House Democrats on Sunday called on the Biden administration to extend the eviction moratorium amid the coronavirus pandemic, hours after the ban expired, putting millions of Americans at risk of being forced out of their homes. “Action is needed, and it must come from the Administration. That is why House leadership is calling on the Administration to immediately extend the moratorium,” Speaker Nancy Pelosi (D-Calif.), Majority Leader Steny Hoyer (D-Md.), Majority Whip James Clyburn (D-S.C.) and Assistant Speaker Katherine Clark (D-Md.) wrote in a joint statement.
Wait a minute: They’re saying that Congress has passed no law specific to Covid-19 calling for this eviction moratorium, and yet the leaders of Congress are demanding that the President just enact it on his own authority? Is that how this is supposed to work?
And it gets even worse. It seems (from the same article in The Hill) that on July 29 (Thursday) the President had called on Congress to enact an extension of the moratorium, but Congress had adjourned without doing so.
The subject of this eviction “moratorium” provides an excellent illustration of the ongoing destruction of the Constitutional separation of powers through the means of broad Congressional delegations of authority allowing executive agencies to seize and exercise the legislative function. Both the Trump and Biden administrations were fully complicit In this instance of the perversion of constitutionally-designated roles. Although the courts over the years have consistently fallen down on their responsibility to enforce the separation of powers, here things got so out of control that the courts may finally be stepping in to rein things back, at least in this one instance.
A history of the various “moratoriums” on evictions during the pandemic, and the legal challenges to same, can be found in the DC District Court’s May 5 decision in Alabama Association of Realtors v. United States Department of Health & Human Services. Here is an abbreviated version of the history:
The CARES Act, enacted March 27, 2020, provided for a 120 day moratorium on evictions, but only with respect to rental properties that participated in federal assistance programs or were subject to federally-backed loans. That moratorium expired on July 25, 2020.
On August 8, 2020, then President Trump issued an Executive Order directing the Director of the CDC to consider whether a measure “temporarily halting residential evictions” might help “prevent further spread of Covid-19.”
On September 4, 2020, CDC issued an Order with the title “Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID-19.” That Order purported to direct that landlords “shall not evict” any “covered person” during the term of the Order. Unlike the Congressional provision in the CARES Act, this Order applied not just to federally subsidized housing, but rather to all residential properties nationwide. The Order’s original expiration date was December 31, 2020.
By the 2020 Consolidated Appropriations Act, Congress extended the CDC’s Order to January 31, 2021.
CDC itself, now under President Biden, without further Congressional action, then extended its moratorium Order first to March 31, and then to June 30 and July 31.
Under what possible authority could CDC have thought it had the ability to issue eviction moratoriums like these by its own say-so without specific Congressional authorization? The CDC claimed to find the power in Section 361 of the Public Health Services Act of 1944. Here is the relevant text:
The [Secretary of HHS] is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.
If you read the first sentence by itself, there would seem to be no limits whatsoever on what HHS (and its sub-agency CDC) can do to order people around supposedly in the cause of “preventing the introduction, transmission, or spread of communicable diseases.” Mask mandates? Stay at home orders? Travel restrictions? How about ordering all business to cease?
Or does the second sentence qualify the first, such that the only legitimate orders that CDC or HHS can issue under this statute are orders dealing with things similar in nature and kind to the listed examples of “inspection, fumigation, disinfection, sanitation, pest extermination, [or] destruction of animals or articles . . .”?
The breadth of the CDC’s eviction moratorium, combined with its tenuous relationship to preventing or slowing the spread of the disease, led to a flurry of litigation challenging the Order. The DC District Court’s May 5 decision lists five other cases seeking to enjoin the CDC, arising from Tennessee, Ohio, Georgia, Louisiana and Texas. In at least two of those cases the courts had issued injunctions against the CDC Order, and the DC District Court joined them. But then the DC District Court “stayed” its preliminary injunction, meaning that it allowed the CDC Order to remain in effect while the litigation continued, potentially for months or years. That led the plaintiff landlords and realtors to go to the DC Circuit, and then to the Supreme Court, to seek to get the “stay” removed so that the injunction could take effect.
At the Supreme Court, Chief Justice Roberts and the three liberals voted to leave the stay in place — and thus allow the CDC eviction moratoriums to remain in effect for as long as the CDC should decide to continue them. Justices Thomas, Alito, Gorsuch and Barrett voted to vacate the stay (and thus end the moratorium immediately). Justice Kavanaugh, who voted with the liberals, wrote a brief concurrence, of which this is the key line:
In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.
The key takeaway is that for the three liberals (Breyer, Sotomayor and Kagan) that one vague first sentence from 1944 is completely sufficient to allow the CDC to assume complete dictatorial powers over the entire economy.
UPDATE, August 4, 2021: Late yesterday, even as I was writing the above post, the CDC issued a new, somewhat modified, Order purporting to extend its eviction ban once again, this time to October 3. The principal modification is that the extended ban limits applicability of the Order to areas of the country having “substantial [or] high levels of community transmission" of Covid-19 — in other words, to only about 90% of the country.
In a post at Reason yesterday evening, Ilya Somin notes that the modification does nothing to fix the main constitutional infirmity of the moratorium, which is that it “rel[ies] on a legal rationale giving the CDC virtually unlimited power to shut down any activity that might potentially facilitate the spread of disease in any way.”
The Washington Post quotes President Biden yesterday afternoon as saying that the CDC would shortly make a decision on whether to extend the ban. In the Post’s quote, Biden goes on to say that “The bulk of the constitutional scholarship says that it's not likely to pass constitutional muster.” Well, does it or doesn’t it? You took an oath of office to uphold the Constitution. Is it now your position that that is just not part of your job?
Also in the Post’s piece is a picture of Majority Leader Schumer hugging Congresswoman AOC in celebration of the CDC’s extension of the ban.
Old Constitutional order: Congress and the President have limited powers to make and enforce laws, as set forth in the document. New Constitutional order: The President claims unlimited power to order the American people to do anything he wants and dares the courts to try to stop him.
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