Although pandemic persists, ‘so does the Constitution’
The pandemic has prompted public officials to impose restrictions that have often contorted or ignored constitutional boundaries. It’s encouraging that a number of judges haven’t been afraid to call out abuses.
The latest example came on Thursday, when U.S. District Court Judge J. Campbell Barker in Texas laid bare the dubious rationale under which the Centers for Disease Control and Prevention enacted a national eviction moratorium last year. President Joe Biden recently extended the ban until March 31.
The Public Health Services Act grants the CDC the authority to take “reasonably necessary” measures to prevent the interstate spread of disease in an emergency. Agency bureaucrats interpreted that to mean they had the power to temporarily appropriate the property of tens of thousands of landlords because tenants who were forced out could potentially be COVID spreaders.
But the relationship between the coronavirus and delinquent renters is tenuous, to say the least. Is there anything the CDC couldn’t do in the name of pandemic control under such a broad interpretation of the statute? As George Mason University law professor Ilya Somin wrote last year, “Pretty much any economic transaction or movement of people and goods could potentially spread disease in some way.”
Likewise, Judge Barker cast a skeptical eye on the CDC claim to virtually unchecked authority, noting that “the federal government has not claimed such a power at any point during our nation’s history until last year.” Even if Congress had wanted to enact an eviction freeze on its own, he ruled, the Commerce Clause grants it no such jurisdiction to meddle in state affairs. Therefore, it could not legally have delegated the power to the executive branch.
“Here, the regulated activity is not the production or use of a commodity that is traded in an interstate market,” he wrote. “Rather, the challenged order regulates property rights in buildings — specifically, whether an owner may regain possession of property from an inhabitant. … Although the COVID-19 pandemic persists, so does the Constitution.”
Activists vowed an appeal. “This court decision must not stand ... ” said Diane Yentel of the National Low Income Housing Coalition, according to reason.com. “Evictions risk lives, drive families deeper into poverty, and strain our already overstretched public health systems.” That may be true, but it doesn’t justify trampling on constitutional principles involving due process and property rights. Besides, many states — such as Nevada — have imposed their own limits on evictions, which are unaffected by Judge Barker’s ruling.
State overreach has been a consistent characteristic of the pandemic. Congratulations to the judges who have recognized that public officials must operate within the confines of this nation’s founding document even during a public health crisis.