The CDC’s Eviction Moratorium Was Illegal, Tyrannical, and Un-American from Day One

W ell, well, well. If you had “Progressives Try to Establish a CDC-Led Dictatorship to Further a Policy Illegally Promulgated by Donald Trump” on your 2021 Political Bingo card, I guess it’s time to collect your winnings.

Summing up the “You and Whose Army?” approach that has long marred the federal response to COVID, Representative Maxine Waters (D., Calif.) proposed yesterday that if Congress can’t muster the votes for a renewal of the national eviction moratorium that President Trump ordered in September of last year, the director of the CDC should simply declare the renewal herself:

L’etat? C’est les Centres pour le Contrôle et la Prévention des Maladies.

At Vox, Ian Millhiser was outraged — not by Waters, of course, but by the very idea that the lawless unilateralism of a president he once believed was planning to arrest and imprison him might finally be brought to an end. In a single, chilling sentence, Millhiser presented the argument in favor of the CDC’s authority to play emperor:

Federal law permits the CDC to “make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.”

Ah.

If the law Millhiser is citing here were to be interpreted according to his wishes, it would, quite literally, represent an Enabling Act. I wrote last week that COVID-19 has given us “progressivism unleashed,” and there really is no better example of that phenomenon than this. The primary purpose of the United States Constitution is to separate power between the branches of government; the system for which Ian Millhiser and others are clamoring would do precisely the opposite, placing untrammeled dictatorial authority into the hands of a single unelected technocrat, whose dominion was limited solely by his own “judgment.” (In his citation, Millhiser changes the “his” in the statute to “its,” which suggests that he may be aware at some level of just how extraordinary his argument is.) Under such an arrangement, there can be no such thing as a limiting principle, for to hand a federal agency the power to invent any regulation it considers “necessary” in a crisis is to hand that federal agency full control of the government. In Federalist No. 47, James Madison observed that a system in which “all powers, legislative, executive, and judiciary” are placed into “the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

If that sounds like an overstatement, consider that the CDC’s apologists are not content merely to gift these legislative and executive powers to its director; they want the judicial branch to abdicate its role, too. At Slate, Mark Joseph Stern urges his readers to take aim at “the primary culprit: the Supreme Court,” and submits that the CDC has been forced to relinquish its power “because of SCOTUS.” “Blame the Supreme Court,” Millhiser writes today. “This is a problem created by the Supreme Court.” In Congress meanwhile, Representative Cori Bush (D., Mo.) wants President Biden to ignore the Court, reissue the ban, and, as NPR’s Steve Inskeep put it to her, “tell anybody who doesn’t like it, ‘Sue me.’”

Or, as Maxine Waters would say, channeling her inner Andrew Jackson: “Just do it.”

As usual, the problem that Millhiser, Stern, Bush, and Waters have is not really with the Supreme Court, but with the Constitution itself. “Just do it” may be a good slogan for a sports-apparel firm, but in a republic such as ours, it’s an utterly deleterious governing mantra. There are rules here — rules that Bush, Waters, and others have taken an oath to uphold. And under those rules, as suggested by the plain text of the Constitution and confirmed by the Supreme Court, the CDC has “exceeded its existing statutory authority by issuing a nationwide eviction moratorium.” That being so, the eviction moratorium must end.

If anything, the Supreme Court has been far, far more indulgent of the moratorium than it should have been. Not only did the Court provide a window for the policy to be dismantled in an “orderly” manner — despite a majority of justices’ affirming that it was flatly illegal — but, in his concurring opinion, Justice Kavanaugh suggested that the scheme could probably be continued if the agency were to obtain “clear and specific congressional authorization (via new legislation).” As a matter of bad precedent, Kavanaugh may well be correct; over the years, the Court has had many chances to rein in the excesses set in motion by the New Deal, and it has rarely taken them. As an originalist matter, though, it seems abundantly clear that, irrespective of which branch is writing the regulations, the federal government lacks the power to order a national eviction moratorium per se. There is precisely nothing in the U.S. Constitution that accords this authority to Washington, D.C., and the claim that the interstate-commerce clause awards Congress the power to set the terms of every single rental contract in the United States makes even the stretched reasoning of the Wickard v. Filburn decision seem admirably sober.

The “moderate” response to the end of the moratorium has been that it played a useful role in mitigating the COVID-19 pandemic, but that, at this stage, it has overstayed its welcome. This response is wrong. The CDC’s actions were illegal from the start; they were based upon a statute that brazenly violates the Constitution’s mandated separation of powers; and they were reflective of an approach to federal power that is plainly at odds with the enumerated-powers doctrine by which Congress, as well as the executive branch, is bound. Today, the moratorium is dead. Our next task must be to bury the faulty assumptions that let it stand in defiance of our constitutional order for eleven months too long.