For the Eviction Moratorium, Lots of Blame to Go Around

By Kyle Wingfield

Government has not covered itself in glory during the pandemic. Perhaps nothing illustrates this better than the eviction moratorium. Lawlessness, disregard for property rights, failure to deliver on government programs – it’s all here.

The federal government has imposed several different bans on landlords evicting tenants for failure to pay rent during this pandemic. Congress and both the Trump and Biden administrations have all enacted constitutionally dubious moratoriums. There’s lots of blame to go around.

Stick with me as we go through the history:

The CARES Act of March 2020 imposed a 120-day eviction moratorium on landlords who accept federal assistance programs or loans. When that ban ended and Congress failed to enact a new one, then-President Donald Trump ordered the Centers for Disease Control and Prevention to weigh whether a new moratorium was “reasonably necessary to prevent the further spread of COVID-19.”

The CDC turned to the Public Health Service Act, which allows the secretary of Health and Human Services to “provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human being, and” – wait for it – “other measures, as in his judgment may be necessary.”

There’s quite a distance between ordering pest extermination and forbidding private property owners from evicting non-paying tenants. What couldn’t the secretary do under the umbrella of “other measures”? Worse, the CDC’s moratorium applied to all landlords, not just those involved in federal programs.

That moratorium was to expire Dec. 31, 2020. Once again, Congress stepped in and approved a one-month extension. Once again, Congress declined to go further.

Once again, the CDC did so anyway. A few extensions later, and landlords were looking at July 31 before the moratorium would be lifted.

A group of plaintiffs sought an earlier end, and won in federal court. But when they asked the Supreme Court to enforce the order, it declined to do so.

Justice Brett Kavanaugh was the tie-breaking vote. He explained he was acting out of practicality, since the ban was already set to end, but there were limits to his forbearance: “In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”

Fast-forward to Aug. 3. After weeks of Congress failing to act and administration officials admitting they had no legal authority to do so, President Joe Biden announced a new extension anyway, in counties with “substantial and high levels” of community transmission.

He acknowledged that “the bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster. … (and) the Court has already ruled on the present eviction moratorium.”

“But,” he continued, “at a minimum, by the time it gets litigated, it will probably give some additional time while we’re getting that $45 billion out to people who are, in fact, behind in the rent and don’t have the money.”

In other words, the wheels of justice grind slowly, and he knows it.

But what about that $45 billion Biden mentioned? That’s the real kicker to this saga.

It’s the amount Congress has appropriated for “emergency rental assistance.” You know, the kind of thing that might have helped any out-of-work tenants (versus those simply taking advantage of the moratorium) stay current on their rent, and kept landlords from having to borrow or fall behind in their own debts.

It’s the kind of thing that could have obviated the need for a moratorium. But more than seven months after Congress approved the first $25 billion, much of the money has yet to be distributed.

So to recap, we have a Congress that has only intermittently decided to ban evictions, and two presidents who have done so despite lacking clear legal authority. We have a Congress that has approved tens of billions in rent assistance, but a governing apparatus nationwide that has proven incapable of distributing it with any efficiency or urgency.

And we’re supposed to give more power to this government?

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