White House

Evicting the Constitution

President Joe Biden speaks during a town hall-style interview at Mount St. Joseph University in Cincinnati, Ohio, July 21, 2021. (Jonathan Ernst/Reuters)
Biden decided it’s easier to take the politically expedient path, even one that exceeds legal authority, rather than undertake the tough work of governing.

Few government actions have been more emblematic of bureaucratic overreach than the Centers for Disease Control and Prevention’s nationwide eviction moratorium. After multiple successful court challenges, the Biden administration and the errant agency had seemed to have finally gotten the message — they lack authority to issue such a ban. The president called on Congress to extend the ban just two days before it expired on July 31. But now, bowing to demands from the progressive wing of his party, Biden’s CDC is extending a moratorium that just days earlier he had acknowledged was illegal. The timing confirms what has long been obvious: The moratorium was about politics, not medicine.

The CDC issued the moratorium in September 2020 prohibiting the eviction of self-certified “covered persons” until the end of December. Congress extended the expiration date for a month until January 31, 2021, in its December 2020 COVID-relief bill. Since then, the CDC has extended the expiration date three times: first until March 31, then until June 30, and then through July 31. Now the CDC is extending it a fourth time in areas of high and substantial COVID-19 transmission (i.e., most of the country) until October 3, and suggested it “is subject to further extension . . . based on public health circumstances.”

The CDC relied on a section of the Public Health Service Act (PHSA) that authorizes regulations “necessary to prevent the introduction, transmission, or spread of communicable diseases” into the country or between states. The agency claimed with little proof — as I previously noted — that evicted tenants would move into crowded living conditions or become homeless and spread or contract infection.

In one of the many legal challenges, the U.S. District Court in the District of Columbia held that the CDC had exceeded its statutory authority in issuing and extending the moratorium and invalidated the agency order. While the PHSA grants the CDC broad authority to prevent the spread of disease, it “is not limitless.” CDC’s authority is limited to actions similar in nature to those enumerated in the very next sentence of the statute, namely the control or destruction of animals or articles that could be sources of dangerous infection to human beings. The long-extant PHSA had never before been applied to regulate evictions, which have always been regulated by local laws.

The court also noted that the CDC’s expansive reading of the statute could create constitutional issues. Unlimited rulemaking authority, unbounded by clear limitations or principles, would potentially be an unconstitutional over-delegation of legislative power. Regulating local evictions might also exceed the federal government’s limited powers under the commerce clause.

On June 29, 2021, in a 5–4 decision, the Supreme Court declined to overturn a stay of the district-court decision that had been granted pending an appeal. Yet in a concurrence, Justice Kavanaugh, who provided the crucial fifth vote, clearly agreed with the district court that the CDC had “exceeded its existing statutory authority by issuing a nationwide eviction moratorium.” He only voted to deny vacating the stay because the CDC order was expiring shortly anyway. In an unambiguous direction to the agency and Congress, he ended his concurrence stating, “In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”

Yet the Biden administration was in no hurry. It waited a full month before asking Congress, which had one foot out the recess door, to legislatively extend the moratorium. And Congress did nothing, either before or after Biden’s request.

State and local governments have been even more dilatory. The Federal Emergency Rental Assistance Program provided over $46 billion to state and local governments to distribute to delinquent tenants and their landlords — $21 billion in December in the waning days of the Trump administration and $25.55 billion in March in the American Rescue Plan. Despite the passage of more than half a year, only about 7 percent, $3 billion, has been disbursed.

Like the hundreds of billions appropriated but never spent to combat COVID-19 — now being repurposed to pay for infrastructure — the failure to provide relief to tenants and landlords is a testament to government incompetence.

It also highlights that the moratorium was a political play to a large group, tenants, at the expense of a smaller, unpopular, landlord group. The best landlords could hope for was that they could eventually recover — either from their tenants when the moratorium expired or from the federal appropriations — from what amounted to a forced loan to their tenants. But as long as the moratorium continued, there was little urgency to distribute funds.

Threatened eviction is the primary lever owners have to convince tenants to pay arrears or at least negotiate in good faith to make some compromise arrangement. It also keeps unpaid back rent from accumulating into too large a sum to ever be recovered. With the moratorium in place, tenants had little incentive to negotiate or pay. The sad reality for many smaller landlords whose obligations continued throughout the pandemic as rents went uncollected is that they may never collect the overdue amounts from judgment-proof tenants.

When the moratorium appeared to be over, housing advocates and government officials voiced concerns that large-scale evictions would ensue. This could have been avoided with more action and less posturing by government officials. Instead, the Biden administration has cynically extended an eviction moratorium that the Supreme Court indicated it lacks authority to impose. Undoubtedly, the plaintiffs will soon be back before the Court, which will likely lift the stay that temporarily preserved the moratorium. President Biden apparently decided it is easier to take the politically expedient path, even one that exceeds legal authority, rather than undertake the tough work of governing.

Joel Zinberg is a senior fellow at the Competitive Enterprise Institute and an associate clinical professor of surgery at the Icahn Mount Sinai School of Medicine. He was general counsel and a senior economist at the White House Council of Economic Advisers from 2017 to 2019.

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