Evicting the Constitution

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Few government actions have been more emblematic of bureaucratic overreach than the Centers for Disease Control and Prevention’s nationwide eviction moratorium. After multiple successful court challenges, the Biden administration and the errant agency had seemed to have finally gotten the message — they lack authority to issue such a ban. The president called on Congress to extend the ban just two days before it expired on July 31. But now, bowing to demands from the progressive wing of his party, Biden’s CDC is extending a moratorium that just days earlier he had acknowledged was illegal. The timing confirms what has long been obvious: The moratorium was about politics, not medicine.

The CDC issued the moratorium in September 2020 prohibiting the eviction of self-certified “covered persons” until the end of December. Congress extended the expiration date for a month until January 31, 2021, in its December 2020 COVID-relief bill. Since then, the CDC has extended the expiration date three times: first until March 31, then until June 30, and then through July 31. Now the CDC is extending it a fourth time in areas of high and substantial COVID-19 transmission (i.e., most of the country) until October 3, and suggested it “is subject to further extension . . . based on public health circumstances.”

The CDC relied on a section of the Public Health Service Act (PHSA) that authorizes regulations “necessary to prevent the introduction, transmission, or spread of communicable diseases” into the country or between states. The agency claimed with little proof — as I previously noted — that evicted tenants would move into crowded living conditions or become homeless and spread or contract infection.

In one of the many legal challenges, the U.S. District Court in the District of Columbia held that the CDC had exceeded its statutory authority in issuing and extending the moratorium and invalidated the agency order. While the PHSA grants the CDC broad authority to prevent the spread of disease, it “is not limitless.” CDC’s authority is limited to actions similar in nature to those enumerated in the very next sentence of the statute, namely the control or destruction of animals or articles that could be sources of dangerous infection to human beings. The long-extant PHSA had never before been applied to regulate evictions, which have always been regulated by local laws.

The court also noted that the CDC’s expansive reading of the statute could create constitutional issues. Unlimited rulemaking authority, unbounded by clear limitations or principles, would potentially be an unconstitutional over-delegation of legislative power. Regulating local evictions might also exceed the federal government’s limited powers under the commerce clause.

On June 29, 2021, in a 5–4 decision, the Supreme Court declined to overturn a stay of the district-court decision that had been granted pending an appeal. Yet in a concurrence, Justice Kavanaugh, who provided the crucial fifth vote, clearly agreed with the district court that the CDC had “exceeded its existing statutory authority by issuing a nationwide eviction moratorium.” He only voted to deny vacating the stay because the CDC order was expiring shortly anyway. In an unambiguous direction to the agency and Congress, he ended his concurrence stating, “In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”

Yet the Biden administration was in no hurry. It waited a full month before asking Congress, which had one foot out the recess door, to legislatively extend the moratorium. And Congress did nothing, either before or after Biden’s request.

State and local governments have been even more dilatory. The Federal Emergency Rental Assistance Program provided over $46 billion to state and local governments to distribute to delinquent tenants and their landlords — $21 billion in December in the waning days of the Trump administration and $25.55 billion in March in the American Rescue Plan. Despite the passage of more than half a year, only about 7 percent, $3 billion, has been disbursed.

Read the full article at National Review.