Eviction moratorium exacerbated America’s institutional disarray

WASHINGTON >> The still-unfolding story of the eviction moratorium might yet validate the axiom that nothing is as permanent as a temporary government program. It certainly demonstrates how the coronavirus pandemic has exacerbated a preexisting political ailment — institutional, including constitutional, disarray.

In March 2020, Congress legislated an eviction moratorium applicable to federally subsidized housing (about 28% of multifamily properties) and expiring in July 2020. In September 2020, the Centers for Disease Control and Prevention, an executive branch appendage, suddenly acted as a supplemental legislature. The CDC declared a ban on evictions from any rental housing for nonpayment by individuals making under $99,000 annually or couples making $198,000, who self-certify having suffered pandemic-related financial injury. (In 2020, the median household income was $68,400.) The Biden administration extended the ban three times, through July 31.

Saying that evictions would cause people to move around, perhaps into congested spaces, the CDC located its authority to adopt a housing policy in a law empowering it to “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.”

The most recent of the federal courts that have ruled the eviction ban illegal unanimously held that “other measures” must be something the moratorium is not — measures “similar to” those enumerated in the same sentence. The court, anticipating the Supreme Court, said that Congress must enact “exceedingly clear language” if it wants to dramatically enlarge the government’s power over private property. The court said that under the CDC’S interpretation of its power, it “can do anything it can conceive of to prevent the spread of disease,” even shuttering “entire industries,” exercising “near-dictatorial power for the duration of the pandemic.” Or without a pandemic: seasonal flus kill thousands annually.

So, the CDC evidently thinks that it can do what the president clearly cannot ever do: order national masking. And if Congress has empowered the CDC to suspend any activity involving mobility that might spread an infection, then there is no limit to Congress’ power to delegate to administrative entities essentially legislative power. Absent that doctrine, Congress would have a permanent incentive to leave difficult choices to unelected portions of the administrative state.

As of June, landlords were owed $27.5 billion in unpaid rents. Almost half of landlords, who include many minorities, own only one or two rental units. They continue paying mortgages, property taxes, insurance, and utilities while the CDC requires them to house nonpaying people or risk jail. Landlords can plausibly argue that the moratorium is a “taking.”

The Constitution says government shall not take private property “for public use, without just compensation.” The concept of “public use” has become almost limitlessly elastic. It originally referred to things (roads, bridges, etc.) the general public uses. Then, courts expanded it to include combating “blight.” The Supreme Court’s infamous 2005 Kelo decision stretched “public use” to encompass government taking one person’s property to give it to another private party who would pay higher taxes. If an eviction moratorium to prevent the spread of infectious disease fits within the capacious modern conception of taking for “public use,” then there must be compensation for the taking.

State and local governments have managed to distribute only about $3 billion of the $46 billion Congress appropriated for rental relief. President Joe Biden’s press secretary says he would have “strongly supported” yet another CDC extension of the moratorium, but “unfortunately” in June, in the pesky Supreme Court, four justices termed it illegal. A fifth agreed but said it should be allowed to expire July 31 — and could only be extended by “clear and specific congressional authorization (via new legislation).”

House Speaker Nancy Pelosi, D-calif., wants Congress to extend the moratorium through Oct. 18. Were this done, there