August 5, 2021

Eviction Moratorium

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On Tuesday, “The Centers for Disease Control and Prevention issued a new eviction moratorium that would last until Oct. 3… ​​The announcement was a reversal for the Biden administration, which allowed an earlier moratorium to lapse over the weekend after saying a Supreme Court ruling prevented an extension.” AP News

Here’s our recent coverage of the eviction moratorium. The Flip Side

Many on both sides are critical of the Biden administration, arguing that the moratorium exceeds the executive branch’s constitutional authority:

"The law the CDC relies on to justify its unilateral eviction ban authorizes the agency to impose measures such as ‘inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals,’ not to freeze the rental housing market month after month in nearly the entire country. Many landlords are themselves desperate, on the hook to keep up their properties, pay taxes and service loans whether their tenants pay their rent. Justice Kavanaugh in June clearly signaled willingness to disregard their plight — and the law’s limitations — for another few weeks, not months…

“It is not the Biden administration’s fault that states have been slow to get federal rental aid to needy Americans. But the administration’s only reasonable options were to push states to get their acts together and to request that Congress give the CDC the authority it needed to reimpose an eviction ban. Indeed, the onus remains on states and localities; they cannot count on the new moratorium, issued on shaky legal ground, to absolve them of responsibility to aid renters. If the Trump administration had ignored a direct warning from the Supreme Court, Democrats would rightfully line up to condemn the president. Mr. Biden does not get a pass on the rule of law because his heart is in the right place."
Editorial Board, Washington Post

“The fact that Kavanaugh was offering both pragmatism and a compromise deserves recognition and acknowledgment. The authority of the CDC to issue a moratorium on a social policy issue with an indirect connection to preventing disease was always in question, and reasonable people could differ on it. By allowing [the] moratorium to expire and inviting Congress to act, Kavanaugh was making an entirely sensible judgment…

“The Supreme Court will be asked to reject [the new] ban, and certainly will. In practical terms, therefore, the extension will likely not buy more than a few days (or maybe only hours) for people in danger of eviction… Beyond being tactically foolish, Biden’s action reflects an inappropriate degree of disrespect for the authority of the Supreme Court. When Trump took executive action violating a constitutional line that the justices had clearly delineated, liberals were justifiably up in arms.”
Noah Feldman, Bloomberg

“The White House spent days telling Democrats that Mr. Biden couldn’t renew the order. ‘The President has not only kicked the tires; he has double, triple, quadruple checked,’ a senior aide said Monday. ‘He has asked the CDC to look at whether you could even do targeted eviction moratorium—that just went to the counties that have higher rates—and they, as well, have been unable to find the legal authority.’ A day later Mr. Biden did it anyway, without so much as a legal fig leaf…

This is disdain for the rule of law. Where is Attorney General Merrick Garland? Where are the news stories about White House lawyers trying to dissuade the President? The lesson Mr. Biden seems to have taken from Barack Obama’s ‘pen and a phone’ phase is that a Democratic President can get away with anything. The courts should quickly tell him he can’t.”
Editorial Board, Wall Street Journal

“Willfully breaking the law and relying on judicial delay to get away with it is an awful approach to governance. It is lawlessness. And though presidential lawbreaking is hardly new — I'd be utterly unsurprised to learn past presidents discussed this very strategy behind closed doors — Biden's blatant, public announcement of intent to thus exploit our court system seems to be an innovation…

“As a candidate, Biden promised to take ‘aggressive action’ to ‘maintain the rule of law, and to bring integrity back to our justice system.’ Instead he's hit upon a novel way to degrade the rule of law and make our justice system a joke. Future presidents will copy this exploitation if Biden pulls it off. A president can deport a lot of people, or build a lot of border wall, or drop a lot of bombs, or take down a lot of websites, or send a lot of weapons to a lot of dictators, or expedite a lot of federal executions ‘by the time it gets litigated.’ Is that the standard of governance we want? Is the pace of a jurist's pen enough defense against rule by one man's fiat?”
Bonnie Kristian, The Week

Other opinions below.

See past issues

From the Left

“Biden conceded in his Tuesday press conference that the courts very well may strike down the new CDC order. But he’s praying they won’t do so quickly…

“It’s a dangerous play that could easily end in a vindictive Supreme Court stripping away even more of the federal government’s authority to fight pandemics. As a general rule, it’s a bad idea to take a particular action after five justices have already signaled that they think that action is illegal. But Biden appears to be betting that there’s enough humanity left in an increasingly right-wing judiciary that they will give him more time to save people’s homes."
Ian Millhiser, Vox

“For the better half of the year, many [tenant advocates] have warned that rent relief dollars were failing to reach at-risk renters. There were many reasons for this, but two big ones were that a) many tenants didn’t even know that the aid was available to them and b) the hurdles to proving that you were in need are so burdensome that many are unable to provide the necessary documentation. Rental registries can help fix that

"A rental registry requires landlords to register their property with a governmental body and submit key pieces of information like the address of the property and contact information for the landlord. But it wouldn’t be difficult to also require landlords to provide more detailed information like how many tenants they are leasing out to, how many units in each property, and how much they’re charging for rent…

“These registries could also be used to ensure direct communication with landlords about tenant rights and fair housing law as well as a line between low-income tenants and government services they may not be aware are there to help them. In other words, if we’d had a registry already, the state and local agencies administering rent relief could have used the information in it to contact all the renters within their borders and inform them of the available funds."
Jerusalem Demsas, Vox

From the Right

“The order also admits that the CDC is using ‘modeling studies and observational data from the pre-vaccine phase of the COVID-19 pandemic’ to justify an order given now, when around 60 percent of Americans are vaccinated. So we have good reason to believe that those estimates, which were underwhelming to begin with, are actually huge overestimates, since many more Americans have immunity now as compared to when the studies were conducted…

“This should not need to be said, but apparently it does: The Centers for Disease Control and Prevention should not be able to deputize the U.S. Department of Justice to imprison people who violate its weakly reasoned orders on housing policy put in place at the urging of a president who said it was unconstitutional to do so but who then changed his mind under pressure from a few members of his party’s congressional delegation who were pulling a publicity stunt on the steps of the Capitol…

“The courts should strike down this illegal order, but that isn’t enough. Congress needs to change the law to ensure that the CDC is unable to issue an order carrying criminal penalties that is such a shoddy piece of work ever again.”
Dominic Pino, National Review

“Rather than using her majority in the House to pass new legislation, Speaker Pelosi punted on what ought to be the primary responsibility of Congress — passing a law…

“Instead, she and her team called on the White House to unilaterally address the issue: ‘Action is needed, and it must come from the Administration.’ And on the Senate side, Majority Leader Schumer simply pointed to the protest staged by first-term member Rep. Cori Bush (D-Mo) in which she slept overnight on the steps of the Capitol as key to convincing the administration. ‘You are great,’ Schumer pronounced. ‘You did this.  One person did this!’ So much for the Senate taking on its intended constitutional role as the great deliberative body.”
Gary J. Schmitt, American Enterprise Institute

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