Law & the Courts

An Eviction Moratorium Lesson from, and for, the Supreme Court

Rep. Cori Bush (D., Mo.) and Sen. Elizabeth Warren (D., Mass.) embrace after Warren arrived to support Bush who spent the night 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)
It’s not the Supreme Court’s job to superintend the administrative state.

I happen to believe that the eviction moratorium has been dreadful policy and a deceptively packaged one — harebrained socialism masqueraded as a humanitarian counter-pandemic measure. Progressives (not just Democrats but the Trump populists who first conceived of the policy) will, of course, disagree with that, and that’s a fine policy argument to have. One thing House speaker Nancy Pelosi should not get away with, though, is her claim that the Biden administration could have extended the moratorium unilaterally.

It has been obvious through months of court decisions that the CDC-ordered measure, which expired Saturday, was lawless.

I am persuaded, in originalist terms, that even an explicit congressionally authorized moratorium should be unconstitutional because rental agreements are overwhelmingly intrastate commerce; they are thus not within Congress’s interstate commerce power enumerated in Article I — though, as I said when one district judge so held, the Supreme Court’s promiscuous Commerce Clause jurisprudence creates obstacles for such a ruling that may be insuperable.

That said, the principal flaws in the moratorium were that a) Congress did not explicitly authorize it, b) there is no inherent executive authority to order it, and, fatally, c) it is not authorized by the statutory law that the CDC distorted in rationalizing it. The lower court decisions that spelled this out were persuasive.

More to the point, as I explained at the time, the Supreme Court made it clear that the moratorium was ultra vires — beyond the scope of legal power — when it ruled more than a month ago. Four conservative justices were prepared not merely to say so but to vacate a stay on a lower court order scrapping the moratorium. Yet, the High Court erroneously failed to do this because Justice Brett Kavanaugh calculated that, although lawless, the moratorium was going to lapse in a few weeks anyway.

Not holding my breath, but the shenanigans of the last few days should be instructive for Kavanaugh, and for Chief Justice John Roberts, who sided with the Court’s three progressives in opposing the lifting of the stay.

They decided that doing their job — namely, ruling on the legal question before the Court — would be too disruptive. With the illegal moratorium set to expire on July 31, Kavanaugh figured it best to give Congress and the administration the remaining month to consider alternatives and “allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds.”

So what ended up so predictably happening? Nothing, that’s what.

Democratic leaders used the time to ratchet up pressure on the Biden administration to extend a lawless measure and to sharpen rhetoric that they hoped would extort the justices into, yet again, looking the other way.

Speaker Pelosi and Senate majority leader Chuck Schumer did not push a legislative fix because they didn’t have the votes. Their majorities are razor-thin. While their members in non-woke districts (most of the country) don’t want to talk about it aloud, the moratorium is a terrible policy that is bankrupting small real-estate owners while discouraging renters from seeking work since they’re not making payments.

Moreover, while the administrative state is busy rhetorically bullying the vaccinated into masking up (and thereby encouraging the unvaccinated to stay unvaccinated — the hijinks our Jim Geraghty continues to catalogue in today’s Morning Jolt), Leviathan is too incompetent to do what it is actually there to do: execute a government program for distributing congressionally appropriated aid to its targeted recipients. Reporting over the weekend indicates that only about 7 percent of the rent relief — $3 billion out of $47 billion — has been disbursed.

The Court’s job is to say what the law is. That’s it. If the justices had done that back in June, we could have avoided five weeks of inevitable drama and dithering.

The Biden administration and congressional Democrats have known for months that the moratorium was illegal, yet they pressed ahead, figuring they could demagogue as heartless anyone who dared call for its elimination. There was no reason to believe they were going to use the time Kavanaugh naïvely gave them to address the problem, since they have always been heedless of the damage the moratorium was doing to average people — after all, struggling landlords are evil, property-hoarding capitalists, don’tcha know, who could not conceivably be seen as average people, right?

The only arguable good that could come out of this mess is the disbursal of the aid funds. That hasn’t been happening, partially because of the usual government mismanagement, but largely because the moratorium put delinquent renters in no great hurry to apply for the funds to pay rent arears. That would enable the owners to pay their mounting mortgage and other obligations, while nudging the renters to shake off the pandemic-emergency doldrums and reset to normal life, in which gainfully employed people timely pay their rent.

Such a reset could be set in motion only by ending the moratorium, thus riveting the attention of the bureaucrats and altering the incentives of the renters.

As Bill Belichick famously tells his players: Just do your job. A lineman doesn’t have to do the other players’ jobs — he just needs to block and let quarterback worry about hitting the open receiver. Is that a more hopeful proposition when the quarterback is Tom Brady? Sure, and it’s fair enough to observe that Nancy Pelosi is no Tom Brady. Still, it’s simply not the Supreme Court’s job to superintend the administrative state. Just say what the law is and leave it to Congress and the administration to sort out the hash they’ve made.

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