Law & the Courts

Americans Must Ignore the New CDC Eviction Moratorium

People camp out on the steps of the U.S. Capitol to highlight the upcoming expiration of the pandemic-related federal moratorium on residential evictions in Washington, D.C., July 31, 2021. (Elizabeth Frantz/Reuters)
The appropriate response to publicly confessed lawlessness is calm refusal.

Meet the new CDC eviction moratorium. Same as the old CDC eviction moratorium.

Joseph Zeballos-Roig of Business Insider reports that the new rule “carries steep criminal penalties for individual landlords who break the law”: a “potential $100k fine and 1 year in jail if eviction doesn’t result in death” and “up to $250k fine and 1 year in jail if evicted person dies.”

Counterpoint: No, it doesn’t. Because it’s not, in fact, “the law.”

The Constitution tells us that the federal government makes “the supreme Law of the Land; and the Judges in every State shall be bound thereby.” Typically, this means that the courts of all sorts are obliged to follow the rules that have been set or delegated by Congress. In this case, though, those courts are not obliged to follow anything, because they’re bound only by “the supreme Law of the Land,” and because the CDC moratorium, which has no constitutional or statutory basis — and which has been rejected by the highest court in the country — isn’t a law. Among those who can safely ignore the moratorium are everyone: landlords, collection agencies, the police, state legislatures, governors, the media — everyone. There are, of course, an enormous number of laws that Americans do have to follow, but this isn’t among them, because unlike those laws, this isn’t a law. It doesn’t count. It isn’t authentic. It has no force. It’s a dead letter. At best, it’s a wish; at worst it’s theater; but what it is most certainly not is — yes, that’s right — a law.

Which means that the associated fine is $0 and the jail term is zero days. The Supreme Court has ruled that the CDC has “exceeded its existing statutory authority,” and Joe Biden, who ordered it to continue doing so, knows that full well. Per Gene Sperling, who works for Biden, the president “not only kicked the tires,” but “double, triple, quadruple checked” whether the order was legitimate, and on each of those four occasions he discovered that it was not — even for a more “targeted eviction moratorium,” for which the White House was “unable to find the legal authority.” On TV last night, Biden confirmed this before the country when he affirmed that “the bulk of the constitutional scholars” he’d spoken to had told him that the order wouldn’t “pass constitutional muster,” but that he was doing it anyway to buy some time. Having been told by both the president and the Supreme Court that the new moratorium is illegal, Americans have no choice but to ignore it entirely.

The default position in the United States is not that everything is illegal until the government decides otherwise, but the opposite: that there are no laws or regulations until the organizations that have been legally charged with drafting and passing them have decided otherwise. The Supreme Court has ruled that the CDC does not enjoy the power to superintend this area until Congress accords the CDC the power to superintend this area, which it has not done. Congress, aware of this, has declined to accord the CDC the power to superintend this area. The president, aware of both decisions, has asked the CDC to issue an order that has precisely the same statutory shortcoming as the first one, and is therefore void. As such, there is no law in this space.

This is not the same as saying that the CDC has no power. At present, there is a federal law on the books that permits the CDC to issue regulations that pertain to “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles to be so infected,” but there is no federal law on the books that relate to eviction, and the Supreme Court has decided that eviction is not covered under the “any other measures” portion of the underlying statute — not least because if “any other measures” could be construed to apply to everything else imaginable, then the itemized justifications in the law would be moot. Absent a challenge on Commerce Clause grounds, if the CDC were to issue regulations pertaining to “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles to be so infected,” Americans would be obliged to follow them. If, by contrast, the CDC were to issue regulations pertaining to anything else — say, to evictions — Americans would not be obliged to follow them.

The appropriate response to publicly confessed lawlessness is calm refusal. As soon as possible, state governors, legislatures, and courts should make it clear that they intend to follow the law as set by the Supreme Court, rather than the “law” as set by the arrogations of the director of the CDC. To a man, landlords should follow suit, as should every public and private institution connected to the management of private rentals. When writing about it, the media should note that the CDC’s order is an illegal mirage, and that both the director of the agency and the president of the United States have violated their oaths in promulgating it. This is a country built atop an aversion to illegitimate power. There’s nothing different about “abuses and usurpations” that are typed, rather than scrawled onto parchment.

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