The Statutory Authority for the Nationwide Eviction Moratorium

The Director of CDC "may take such measures to prevent such spread of the diseases as he/she deems reasonably necessary."

|The Volokh Conspiracy |

Today, the Center for Disease Control and Prevention filed a notice in the Federal Register. The order purports "to temporarily halt residential evictions to prevent the further spread of COVID-19." No, not just in federal housing. Nationwide.

Under this Order, a landlord, owner of a residential property, or other person3 with a legal right to pursue eviction or possessory action, shall not evict any covered person from any residential property in any jurisdiction to which this Order applies during the effective period of the Order.

CDC argues that keeping people in their homes will prevent the spread of COVID-19:

In the context of a pandemic, eviction moratoria—like quarantine, isolation, and social distancing—can be an effective public health measure utilized to prevent the spread of communicable disease. Eviction moratoria facilitate self-isolation by people who become ill or who are at risk for severe illness from COVID-19 due to an underlying medical condition. They also allow State and local authorities to more easily implement stay-at-home and social distancing directives to mitigate the community spread of COVID-19.

Landlords who evict tenants to qualify for this program face fines of up to $100,000 and a year in prison.

What is the authority for this sweeping order? The thirty-seven page notice cites a single regulation:  42 CFR § 70.2. It provides:

Whenever the Director of the Centers for Disease Control and Prevention determines that the measures taken by health authorities of any State or possession (including political subdivisions thereof) are insufficient to prevent the spread of any of the communicable diseases from such State or possession to any other State or possession, he/she may take such measures to prevent such spread of the diseases as he/she deems reasonably necessary, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.

To be sure, this regulation allows the Director to "take such measures to prevent such spread of the diseases as he/she deems reasonably necessary." But there are limits of this delegation. The regulation provides examples of such measure:  "inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection." All of these measures are localized, and limited to prevent the spread of an infection in a single building or location. None of these examples are even remotely close to a nationwide moratorium on evictions. This action is far beyond the scope of delegated authority.

Moreover, the Director cannot order state courts to not process summary evictions. A landlord could rely on these processes, but then face a federal prosecution for doing so. Would any landlord risk it?

This eviction moratorium lacks even a patina of statutory authorization. Landlords can, and should challenge this executive action.

In August, I blogged about the President's executive actions for disaster relief and payroll tax deferral. Both actions were well within the scope of the President's statutory authority. For days, critics argued these actions were unconstitutional. No one ever backed this argument up. These positions were pure political posturing. Now, about a month later, all objections have subsided. Yet, I have seen nary an objection to this eviction moratorium.

One final, pragmatic point. This order only delays evictions. It does not excuse back rent. In theory, once January rolls around, people would be required to pay five months of back rent. But that will never happen. Whoever is President in December will sign into law a bill that funds all of this back rent. All of it. In effect, President Trump gave millions of Americans a five month reprieve from paying rent. Any litigation will likely be mooted come January, as a bill will make the landlords whole.

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  1. Practical question for your readers — should people currently renting continue to pay rent, or should they refuse to pay and wait for that December handout?

    1. You should pay it if you are able.

      Under the CDC guidelines, you have to swear under penalty of perjury that a number of things are true, among them that you are unable to pay the full amount due to the COVID-19 outbreak.

      Unless you are interested in violating criminal law by committing perjury, you should pay unless you can truthfully swear under penalty of perjury that you meet all conditions.

    2. I think that depends on whether or not you really think the President will sign a bill in December that pays all the back rent. That’s more debatable than Professor Blackman believes.

      If the government does, it’s a substantial amount of money, and well worth waiting for, with little risk. You need to justify it, but that’s relatively easy for most people. Show you got a stimulus check, and show that your hours were reduced in some way, or your income was reduced in some way.

      If you don’t think the government will reimburse your landlord, your still on the hook for a lot of money, and will have irritated your landlord. If you like where you’re living and don’t want to move, I’d pay the money.

      1. “little risk”?

        I think lying on CDC form in order to take advantage of a landlord might be a federal felony. Am I wrong?

        1. You need to justify it (as I noted in literally the next sentence), but it can be relatively easy to justify.

          1. Easy to justify? You can’t be able to afford to pay rent, correct?

            So, if you had a job before that allowed you to pay rent, and you still have that job at the same rate of pay, you can still generally afford to pay rent, right?

            Have you seen the CDC form?

            1. This would go a lot faster, if you read what I wrote.

              “Show you got a stimulus check, and show that your hours were reduced in some way, or your income was reduced in some way.”

              So.
              1. Show you got a stimulus check. Those were available to every individual making less than $99,000 last year (or $198,000 for couples). That’s easily most people.

              2. Show your hours were reduced in some way or your income was reduced in some way. That can be easy for many people. Take a 10% reduction in hours, or a month’s furlough, or a month in between jobs, or business slowed down since last year. Etc. Easier in many ways for couples, since there’s double the chance for something like this.

              Then as long as you made your “best effort” which is quite relative you’ll be fine.

              1. I don’t think that comes close to being sufficient, since one of the requirements of the certification is:

                “the individual is using best efforts to make timely
                partial payments that are as close to the full payment
                as the individual’s circumstances may permit, taking
                into account other nondiscretionary expenses; ”

                Completely stopping rent payments because of a 10% loss of income seems unlikely to satisfy that prong.

                1. “Best efforts” in this clause is going to require significant effort to prove and very tedious to prove in terms of a criminal perjury investigation from a large government organization. The government isn’t going to want to touch it.

                  The income clauses and stimulus clauses are simple pieces of paper work that can be gone through pretty quickly. Either yes or no. But “Best efforts” for criminal perjury on a form like this? To prove the defendant didn’t put their “best effort” forward beyond a reasonable doubt? Before a jury?

                  The defendant will get up there on the stand and say “my income dropped, and I was worried about the future, and lack of savings, and I really wanted to pay the rent, I really did, but food prices went up, and the car needed repairs and… And then the government came in and said given my situation I would be given a delay on needing to pay the rent, as long as I tried to pay it when I could, so I signed the form”

                  And then you’re going to have a government lawyer on the other side saying “She didn’t try her very best to pay the rent, despite losing income so even though she still owes the money and says she’ll pay it back, we’re going to throw her in jail for perjury.”

                  And the jury will look at this poor woman and say “nope, not gonna put her in jail”.

                2. You’re assuming the wiggle room in “best efforts” and “as close…as circumstances may permit” and “nondiscretionary” cuts against the non-paying renter.

                  I don’t think so, since the proposed enforcement mechanism for incorrectly filling out the form is perjury. IANAL but my understanding is that a perjury conviction can only be obtained if it is shown that that renter intentionally lied, and it is shown beyond any reasonable doubt. Mistakes or honest differences of opinion about the meaning of “best effort” or “nondiscretionary” are not perjury.

                  And as a practical matter, if Armchair Lawyer’s interpretation becomes popular and 3 million people use it, there is no chance the government will be prosecuting and imprisoning them. The worst that would happen is the landlord gets to evict them without being penalized.

            2. David, did you read your citation? Here it is in full
              Definition of source
              (Entry 1 of 3)
              1a : a generative force : cause
              b(1) : a point of origin or procurement : beginning
              (2) : one that initiates : author also : prototype, model
              (3) : one that supplies information
              2a : the point of origin of a stream of water : fountainhead
              b archaic : spring, fount
              3 : a firsthand document or primary reference work
              4 : an electrode in a field-effect transistor that supplies the charge carriers for current flow — compare drain, gate

              It does not as cause (a noun). A noun is used in the text of the law. A cute but ineffective bit of sophistry on your part

  2. But not all landlords can go 5 months without any rent from tenants. I don’t know that we could, or if we did it would be at considerable cost in having to take out a personal loan to cover the mortgage. But then, would the bill cover that or just the actual amount we charge for rent?

    What about banks? Are they not foreclosing for 5 months? If they foreclose, how does that make the landlord whole if they lose the whole property over 5 months rent? If our property forclosed we would lose over $100k, where 5 months rent is only $7k. I certainly wouldn’t feel made whole over that.

    1. Not all ranchers can afford to have their livestock destroyed. And yet, the CDC director is authorized by the regulation (which is in turn authorized by Congressional statute) to destroy animals anyway.

      Also, whether a rancher or a landlord must be made whole for the destruction of personal property is a separate matter of 5th Amendment (takings) law.

    2. 3ducerist — the MA law bans foreclosures, too.

    3. Landlords could consider getting an actual job if they need money. Bootstraps, learn to code, etc.

      1. Landlords *will* stop spending money on maintenance, upkeep, security and such.

        And there are extra-legal means of evicting people.

      2. So being a landlord isn’t a job? Who fixes the properties? Who deals with regulations? Who deals with questionable tenants? Who builds buildings?

        Landlords may not directly do ALL of the above, but they certainly do a lot of the above. I assume you don’t own your own residence, because no one who does would make such a stupid statement.

        1. Who fixes the properties? Who builds the buildings?

          Not landlords, generally. That would be property managers and construction workers, respectively, which are real jobs. Landlords, on the other hand, make their money not from productive labor, but from extraction based on the value of the land. In other words, they reap where they did not sow, as Adam Smith said. Thus, not a real job.

  3. I think Blackman’s argument that an eviction moratorium cannot pass legal muster is very weak, relying solely on the assumption that the CDC director must generally allow the spread of disease and that the regulation only authorizes action to top the spread of disease the action consists of “inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles.”

    If Blackman isn’t taking the position that only items on the list are allowed and believes that other actions than those on the list are allowed, he should explain what those other actions would be and how they relate to the items on the list.

    The words here are “including.” The language merely affirms that these actions are among those that a CDC might find “reasonably necessary” to stop the spread of disease. Blackman can’t argue with a straight face that allowing millions of evictions to go forward would not cause a large increase in infections, so his argument must mean that the CDC director has to allow the uncontrolled spread of such infections even though an eviction moratorium would prevent them. Or, in other words, that an eviction moratorium is not “reasonably necessary” even though the lack of one will cause infections (and death). This is a weak position.

    That the drafters included the word “reasonably necessary” indicate that they intended the list to be illustrative. The list should be thought of as a “safe harbor” for the actions on the list, not a requirement that only the items on the list be among those taken. Otherwise, the words “reasonably necessary” are entirely superflous and the regulation need only specify the precise actions in the list without also extraneously describing those actions as “reasonably necessary.”

    Even assuming, arguendo, that the list should be taken as some sort of comprehensive guide rather than as a safe harbor or an incomplete list of examples, we can see that the list allows for the destruction of property. For a rancher, the destruction of animals can be economically devastating. Similarly, there are no limits in the list based on the value of articles destroyed.

    An eviction moratorium destroys some, but not all of the economic value of a lease. But. a lease, like an animal or article, is personal (not real) property. If the CDC director is allowed to completely destroy personal property (livestock and articles) to stop infections, a fortiori, the director may partially destroy such personal property.

    To sum up, Blackman’s legal argument is very weak for two reasons.

    1) He wrongly takes an exemplary list to be be a comprehensive list. But such an interpretation renders the words “reasonably necessary” utterly superflous.

    2) Even if the list were wrong interpreted to be comprehensive rather than exemplary, a rent moratorium would be allowed. A lease is an “article,” namely, an item of personal property. Rather than completely destroying this property, a rent moratorium only partially destroys it.

    1. Did you even read the post?

      “To be sure, this regulation allows the Director to “take such measures to prevent such spread of the diseases as he/she deems reasonably necessary.” But there are limits of this delegation. The regulation provides examples of such measure: “inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.” All of these measures are localized, and limited to prevent the spread of an infection in a single building or location. None of these examples are even remotely close to a nationwide moratorium on evictions. This action is far beyond the scope of delegated authority.”

      That would seem to refute your argument about what Blackman is claiming. His claim is not that the list is exhaustive, but that the scope of the actions on the list are markedly different from the scope of a nationwide eviction moratorium. I’m not saying Blackman is even right, here, but his actual position is certainly not the strawman you’re erecting.

      (Whether or not prohibiting evictions is good policy is irrelevant to the question of whether or not the CDC director has the power to do so).

      1. Squirrelloid:

        1st: Your talk of public policy is inapplicable. Whether preventing evictions would stop the spread of COVID-19 is COMPLETELY AND TOTALLY relevant to the question of whether stopping evictions is “reasonably necessary” to prevent the spread of a communicable disease. Stopping the spread of communicable disease is right in the text of the law; one need not search for principles of good public policy outside the text of the law to justify stopping the spread of communicable disease.

        2nd: There is no strawman here. Blackman does not provide any examples of actions not on the list that he claims would be permissible, so there is no way to evaluate the claim that the proposed eviction moratorium is “too far” from the items on the list. Further, Blackman has provided no evidence that reasonably necessary must be measured in relationship to their similarity to items on the list rather than the broader principle of being effective in stopping the spread of a communicable disease. The regulation specifically says “reasonable necessary” to stop the spread of communicable disease. Not “reasonably similar” to items on the list. But if some similarity metric is going to be inferred, at the very least we need examples so that we may assess the meaning of this similarity metric. We also need to understand the principles that justify those permitted examples. Blackman fails to provide this. Opening up the question of whether under his interpretation anything that is not specifically listed is permitted. Blackman is already straying far from the text in assuming a similarity metric be read into the words “reasonably necessary.” Further, he has suggested no methodology by which such a similarity metric would be judicially manageable nor has he provided a reason for the judiciary to read into the text a similarity metric that isn’t explicitly called for.

        3rd: Even if a similarity metric were required, an eviction moratorium is on the list. The CDC may totally destroy an article believed to be the source of infection. An article, we can all agree, is personal property, if not real property. Both a lease and the right to enforce the terms of a lease are personal property. The right of landlord to enforce a lease through an eviction is personal property believed by the director of the CDC to be a source of infection. Therefore, the CDC directory may destroy that personal property.

        So, even under Blackman’s stretched and fanciful reading into the law words that are simply not there which implicitly transform the words “reasonably necessary” to stop communicable disease to “reasonably similar” to example items on the list and thereby establishing a similarity metric that is difficult or impossible for the judiciary to police without reference to its own police preferences, the CDC actions are justified by the regulation. Even then.

        Nevermind policy preferences. Blackman’s legal argument is very weak.

        1. One of the issues here David, is you haven’t established an upper bound on the actions the CDC may be able to take under this regulation. Nor the relevant Constitutional Authority for its actions.

          (And BTW stretching the definition of “article believed to be a source of infection” in the context it’s being used in the regulation to a lease agreement is really breaking the boundaries. The lease agreement itself is not a source of infection)

          But back to the upper bound question. What other actions can the CDC take under this regulation, legally speaking, to halt the spread of infection. Can they…

          1. Issue a national quarantine? Ordering everyone to stay at home?
          2. Seize everyone’s cars and other modes of transportation as articles that help spread the infection?
          3. Issue mandatory vaccination laws?
          4. Order the destruction of everyone’s pets, since they are known to be able to harbor COVID-19
          5. Order those infected with COVID-19 be….terminated….since people are animals too?

          Just curious, what you think the upper bound on the authority granted by this regulation is.

          1. 1: The upper bound comes straight from the text of the law. It is those actions “reasonably necessary” to prevent the spread of a communicable disease.

            2: You are right that the lease is not the source of infection. Instead, the source of infection would be the right to evict under the lease. The right to evict happens to be personal property.

            3: We are talking about the correct interpretation of the regulation. As with any law, applications of it must pass constitutional muster.

            Your last example, killing people, would not be either a good interpretation of the statute (since not “reasonably necessary”) nor survive a substantive due process or equal protection challenge.

            1. Realistically the source of the infection is (potentially) the people living in the house. Not the right to evict. A “Right” cannot be a source of infection. It is not possible for a non-physical item to be a source of a physical infection.

              In addition, it seems that you would justify points 1-4 as entirely proper under the above regulation. Which is…extreme. And worrisome.

              1. Where did you get the idea that only physical property could be the source of an infection? I am pretty sure that idea didn’t come from the text, because the text makes no such distinction.

                Also, the right to evict is the right to do a physical thing. You have the tenants physically removed from the premises, thus physically exposing them to COVID-19.

                1. “Where did you get the idea that only physical property could be the source of a [physical] infection”

                  Umm. Science? Common sense? An understanding of reality? The fact that non-physical concepts cannot magically manifest the physical COVID virus, which is required for infection? Do I really need to have this discussion? Let me portray how absurd this is…

                  Doctor: “Sir, it appears you have HIV. Do you know where or who you got it from?”
                  Patient: “Oh, it was the First Amendment”
                  Doctor: “The First Amendment? Is that a bar?”
                  Patient: “No, the actual First Amendment. The right to free speech. That right gave me HIV. That right was the source of the virus that infected me”.
                  Doctor: “You’re saying a non-physical right somehow manifested a physical item out of thin air, and then infected you with that physical item”
                  Patient: “Yes. you need to eliminate that right. It was the source of my HIV”.
                  Doctor: “Ohh…Kay…”

                  1. Ok, as long we agree that this idea didn’t come from the text.

                    I think that “source” is often a synonym for the word “cause.” So, something is the source of something if it is the cause of it.

                    From the move, we can see how a right to evict can be the source of something the spread of a communicable disease.

                    1. Source does not mean cause. The source of an infection is *where you got the disease from*, which in the case of Covid-19 is another creature (typically another person, but animals can be carriers as well).

                      To say an eviction is the ‘source’ of covid-19 infections proves a complete lack of biological knowledge. The CDC director cannot believe that to be true.

                      Evictions might (*might*!) facilitate an increase in infection rate (although i doubt there’s any data on this at all), but that’s not the same as being the ‘source’ of the infection.

                    2. Squirelloid:

                      Here is one definition of source:

                      “a generative force : CAUSE”

                      So, sometimes a source is a cause.

                      https://www.merriam-webster.com/dictionary/source

                    3. Sigh,

                      Apparently I do need to have this discussion.

                      Words have meanings. The idea came from the text, in that words in the text have meanings. Synonyms are not the same as the actual words. When you cite a synonym in a dictionary decision, that’s not the actual definition.

                      Sources are where (or what) something comes from. Origins. Causes are why something happens. They’re not the same.

                      https://oilpatchwriting.wordpress.com/2010/11/11/source-vs-cause/#:~:text=The%20noun%20%E2%80%9Csource%E2%80%9D%20means%20a,about%20a%20result%20or%20effect.

                    4. In addition to Armchair Lawyer’s point, you seem to think that all definitions of a word apply in all usages. They don’t. You’re ignoring context.

                      (That definition you cite is worded rather poorly, but i think they’re imagining metaphorical turns of phrase like “the source of the problem” – but replacing ‘source’ with ’cause’ in that sentence would materially change what is meant. So it sort of works in a ‘handwaving around the usage of the word’ sense, but it fails at being precise. At best they mean ‘ultimate cause’).

                      The right definition in this context isn’t the one you quote, it’s 1(b)(1): a point of origin or procurement.

                      If you become infected with covid-19 because you kissed someone, the ’cause’ of the infection is kissing, but the ‘source’ of the infection is the other person. The other person is not the cause of the infection – the brute fact of their existence or the existence of their infection is not what caused you to get infected. Symmetrically, the act of kissing wasn’t the ‘source’ of the infection, because a virus source is a physical harborage in which the virus had residence. The virus existed before the kiss, and did not ‘exist in’ the kiss, but existed in the other person.

                      (Regardless, there’s also no good argument for evictions being causes of infection, see my analysis in post below).

            2. Which specific statute do you think authorizes your broad interpretation of 42 CFR 70.2? Allegedly its somewhere in 42 USC 216, 243, 42 USC 264-272, or 31 USC 9701.

              1. Statute that authorizes a broad interpretation?

                Do you mean the statute that authorized the agency to issue the regulation in the first place?

                1. Yes, which one of those statutes do you think authorized 42 CFR 70.2 (and specifically your interpretation of 42 CFR 70.2)?

        2. 1/
          It doesn’t matter if it’s *generally good policy*. The only thing that matters is if it’s “reasonably necessary” for the regulatory text. Can you point to any study that shows the relative risk of evicted people for Covid-19 infection or transmission relative to the general population? Seems to be spreading just fine among the housed population at the moment, and the CDC has no data on the increased risk due to homelessness on their website.

          ‘Reasonably necessary’ requires more than ‘i think it might be a good idea’.

          2/There’s definitely a strawman. You outright state Blackman is using the list as definitive, when he absolutely isn’t. He’s using the list as illustrative in terms of the *nature* of the actions that can be taken. They’re all localized actions. Yes, the CDC can order the elimination of a herd of animals which have the infection. No, the CDC cannot order the elimination of ALL HERDS regardless of infection.

          3/ Getting evicted is not the source of any infection whatsoever. Viruses (and bacteria and fungus) are real physical things. They come from physical things (items or organisms with the virus). Being evicted is not a physical thing, it’s an action. And while a lease is a physical thing (in the sense that it’s a physical document memorializing a contract), the powers and responsibilities a lease gives renters and owners is not a physical thing. As such, these things cannot be the “source” of an infection of any sort.

          Source has a specific meaning. It does not mean ‘tangential cause’ like you’re interpreting it to mean. (And that’s the best you can get, because getting evicted does not *cause* an infection, it *might* slightly increase your risk of infection because of differences in living circumstances, but the risk is already present even if you aren’t evicted).

    2. A moratorium on evictions is not “reasonably necessary”. If Congress intended to give that much power to a lower-level federal official, they would not have included that list of examples as surplusage.

      1. Congress? The text we are interpreting is a regulation.

        1. You are worrying around about regulatory authority, Blackman is worrying about the statutory authority of the Director, but what authority does Congress have to interfere in the workings of state law and judicial proceedings? Under which of Congress’s enumerated powers can it do so? What limits are there on the federal government’s power to prevent spread of disease? Are there any?

    3. “Blackman can’t argue with a straight face that allowing millions of evictions to go forward would not cause a large increase in infections…”

      I think he could but he doesn’t have to. The use of a list (without including without limitation) probably implicates the associated words canon. The intent here appears to be that what is “reasonably necessary” is modified by the enumerated list, which, to Blackman’s point, speaks only to local matters.

      The problem you’re walking into is that your interpretation justifies anything that is “reasonably necessary”. Do we presume that the lawmakers intended for the President to mandate healthy eating nationwide, or to ban hand-holding? Both would decrease the spread of infection.

      “Otherwise, the words “reasonably necessary” are entirely superflous…”

      Not so. If the list enumerates local activities that are permissible, the inference is that “reasonably necessary” includes unlisted things that are local.

      “1) He wrongly takes an exemplary list to be be a comprehensive list. But such an interpretation renders the words “reasonably necessary” utterly superflous.”

      I don’t think ejusdem generis applies here, but many courts decline to apply the canon only where the statute says including but not limited to, which this one doesn’t. See, e.g., US v. Migi, 329 F.3d 1085, 1087 (9th Cir. 2003). Again, I don’t think this is a case of ejusdem generis at all, but the lack of “but not limited to” in the statute would suggest that the list was intended to be instructive.

      1. Statute should be regulation, last paragraph.

      2. I have no idea what you mean by local.

        I assume not local as in federal, state, and local. Since this is a federal regulation. An eviction always occurs (or not) in some locality.

        I have no idea what principle you are inferring from the text that you refer to by the term local. Two example actions not on the list might help. What is one example action that you believe the CDC director CAN DO and one example action and one action the CDC director CANNOT DO despite it being “reasonably necessary”???

        This seems like a necessary step to understand how (and if) you are interpreting the text of the regulation, since your use of the word local is far from self-evident.

        1. “I have no idea what you mean by local.”

          From the OP:

          All of these measures are localized, and limited to prevent the spread of an infection in a single building or location. None of these examples are even remotely close to a nationwide moratorium on evictions.

          “What is one example action that you believe the CDC director CAN DO and one example action and one action the CDC director CANNOT DO despite it being “reasonably necessary”???”

          1) Blockading the use of a building.
          2) Blockading the use of all buildings in the country.
          1) Quarantining a person who has COVID.
          2) Quarantining all persons in the country.
          1) Suspending eviction of a person with COVID.
          2) Suspending evictions of all persons in the country.

          1. How is there even really a federal interest in preventing the spread of a disease to a single building or location? The federal government’s interest would be national more than focused on particular buildings and locations (with, of course, the exception of when the federal government controls the said building or location).

            Two problems:

            (1) This locality principle is not really derived from the text. For example, killing livestock would generally be justified to prevent the spread beyond the particular ranch in which the disease already exists. How does killing livestock illustrate a desire to protect a particular building or location.

            (2) This is a function of the federal government. That it addresses issues nationally and not locally would seem to be a feature rather than a bug. After all we have state and local government to address state and local problems.

            Your list is helpful and interesting. For convenient, I reproduce it below:

            1) Blockading the use of a building.
            2) Blockading the use of all buildings in the country.
            1) Quarantining a person who has COVID.
            2) Quarantining all persons in the country.
            1) Suspending eviction of a person with COVID.
            2) Suspending evictions of all persons in the country.

            I can see how you are trying to apply a “locality principle” such that you are arguing that more specific rules are more “reasonably necessary” than more general rules.

            But, of course, laws should not usually be directed at specific people. (Such laws do exist and are called private laws, though.) We do not suspend the eviction of Bob, because Bob has COVID and we like Bob. Rather, we suspend the eviction of all people who have COVID, without favoritism towards specific people.

            I would argue that a law directed at and benefitting only particular named people (your locality principle) would be less reasonable than a law directed to everyone who meets a given criteria.

            1. (1) I don’t agree. “[I]nspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection” speaks to acts that occur in a building or on a property, not nationwide. While the scope can be nationwide (they may have to fumigate buildings all over the country), the enumerated list does not imply any national action so long as the CDC director believes it “reasonably necessary”.

              “…killing livestock would generally be justified to prevent the spread beyond the particular ranch in which the disease already exists.”

              Maybe. But we aren’t talking about “generally be justified” we’re talking about what 42 CFR 70.2 says. And it says “destruction of animals or articles believed to be sources of infection.” It would be a curious reading of “believed to be sources of infection” if it applied to lands “beyond the particular [place] in which the disease already exists.”

              (2) Of course it applies nationally. You’re not engaging the argument. They can fumigate in Colorado. They can fumigate in New York. They can fumigate in Texas.

              “But, of course, laws should not usually be directed at specific people.”

              A federal rule fumigating homes known to contain a COVID infection are no more “directed at specific people” than are federal laws against bank robbery. Or are you suggesting that if the feds exercise their power to fumigate a single home in the country that is known to have COVID infections, the feds must also fumigate every home in the country?

              “Rather, we suspend the eviction of all people who have COVID, without favoritism towards specific people.”

              The memorandum does not suspend the eviction of all people who have COVID. It suspends evictions of all people. My 1) (“Suspending eviction of a person with COVID”) included “eviction of all people who have COVID, without favoritism towards specific people.” I’m sorry if I was unclear.

              “I would argue that a law directed at and benefitting only particular named people…”

              You can argue all you want. Given what we know about pathology, and assuming the goal is to end the pandemic, targeting government actions towards people who have the disease, and towards localities where the disease is present, strikes me as far more reasonable than the alternatives.

              1. “Of course it applies nationally. You’re not engaging the argument. They can fumigate in Colorado. They can fumigate in New York. They can fumigate in Texas.”

                Right. But fumigating houses in Colorado, New York, and Texas has a national purpose, namely, preventing the spread of a communicable disease from these homes to other areas. The primary point isn’t to act locally (that is incidental), the primary point is to have the broader effect of stopping the spread of disease. And, suspending evictions is also acting locally. There is always some local building for which an eviction is suspended, just like there is a local building that is fumigated.

                Overall, I do not think a locality principle buys us anything. I think that the federal government acts locally for a national purpose, the local part of the action is incidental rather than primary. But, even if it did buy us something, as we have discussed the locality principle in the context of fumigation, it would also apply to evictions since every eviction that is prevented applies to some local property. I also think it is a kind of weird argument; if anything, that the federal government has to act locally should count against it, if anything, rather than being a necessary feature.

                “I’m sorry if I was unclear.”

                I kind of knew I was probably attacking a strawman here, but did it to give you the opportunity to clarify. Your example contrasted “a person” with “all persons.” I kind of assumed that you really meant “all persons with COVID-19” versus all people generally, but wanted to confirm. I probably could have done that better.

                Your point about targeting people who have the disease seems more specific, but I am not sure it is. We want to target both groups, but for different reasons. We want to prevent the eviction of people who have the disease to prevent them from infecting others. But we want to prevent the eviction of people who don’t have the disease to prevent them from getting the disease (and in turn, then infecting others). I can see how you would feel that preventing the eviction of people with COVID was more urgent. And, if we had to choose one or the other, I would concur as a policy matter. But being as we don’t have to choose, I think that preventing the eviction of both does prevent the spread of the disease. I don’t think it is the job of a court to say that the CDC director must choose. I believe there is a solid non-speculative fit in both cases.

                1. “…it would also apply to evictions since every eviction that is prevented applies to some local property.”

                  I’ve already said it could apply to evictions. A federal agency can have authority to postpone an eviction, even many, without also having the authority to postpone every eviction in the country.

                  “We want to target both groups, but for different reasons.”

                  Certainly, but what we want is not germane to (1) what Congress authorized some agencies to do or (2) what federal regulations, promulgated pursuant to that legislation, authorized the CDC to do in this case.

                  “I can see how you would feel that preventing the eviction of people with COVID was more urgent.”

                  This is not about my feelings. We are having a discussion exclusively about the scope of administrative authority. What I think a statute or a regulation allows some entity to do is entirely divorced from what I think they should do, were I the king of the world.

                  1. On my last paragraph, I shouldn’t have invited a personal discussion with the last paragraph from my prior post. I withdraw it.

                  2. Well, to summarize, here is what I think we agree on and what we disagree one.

                    I think we agree that personal feelings are not law.

                    I think we disagree on whether a moratorium on evictions for people who do not have COVID-19 is “reasonably necessary” to stop the spread of COVID-19 (a communicable disease).

                    Your thought (I should not have said feelings, please consider that informal) is that there is a stronger connection between an eviction moratorium for people with COVID-19 and preventing the spread of communicable disease than there is between an eviction moratorium including both people with COVID-19 and people without COVID-19 and preventing the spread of a communicable disease. On this point, I am not sure if I agree or disagree. Certainly, a moratorium that stops exactly N people with COVID-19 from being evicted would do more than a moratorium that stopped exactly N people without COVID-19 from being evicted. But, the number of people who don’t have COVID-19 (call is M) is much greater than the number of people who do have it (call it N). So, it may be that the part of the moratorium that includes those who do not have COVID-19 has the bigger aggregate effect on stopping the spread of COVID-19.

                    In any case, you think the difference between the effectiveness of addressing these two populations is such that one can be said to be reasonably necessary and one cannot be said to be so. On this point, we disagree. Even assuming, arguendo, that the eviction moratorium for people without COVID-19 is less effective in aggregate (something I doubt is true), I believe that such a moratorium is effective enough such that it should be considered reasonably necessary.

                    I think this probably summarizes the differences in our point of view (though in a somewhat argumentative way).

                    1. “I think we disagree on whether a moratorium on evictions for people who do not have COVID-19 is “reasonably necessary” to stop the spread of COVID-19 (a communicable disease).”

                      The legal concerning the scope of the CDC’s statutory or regulatory authority does not hinge on what either of us thinks about “reasonably necessary”. You and I could agree that mandating healthy eating, criminalizing hand-holding, and placing a moratorium on all evictions are “reasonably necessary” but it still not be the case that those actions are authorized by 42 CFR 70.2 or any enabling legislation.

                      My disagreement with the CDC is not over whether stopping the eviction of someone with COVID is more (or less) “reasonably necessary” than stopping all evictions. Rather, because of the way 42 CFR 70.2 is structured, I think the CDC is only authorized to engage in “reasonably necessary” conduct that is similar in kind to “inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection” and that a nationwide moratorium on evictions is above and beyond any of those things in kind.

                      In other words, it could be reasonable and necessary to have a nationwide moratorium on evictions, but that 42 CFR 70.2 does not provide the agency the power to do so.

      3. As you say, this is not a case of ejusdem generis since the general words do not follow the specific words, but just the oppsoite.

        1. That’s why I relied on the associated words canon. But many federal courts treat statutes and regulations like this one as ejusdem generis (incorrectly, in my view, but they still do it).

    4. The delta on the difference in the risk of transmission of covid whether evicted or not evicted is trivial,

  4. “A landlord could rely on these processes, but then face a federal prosecution for doing so. Would any landlord risk it?”

    Yes, because it only precludes evictions, and you don’t have to get an order of execution. If you have a judgement that the tenant owes you money, you can report it to the credit bureaus and that messes up the new car loan, etc, etc, etc.

    Most (not all) of these tenants HAVE money — with the extra $600/week, many have MORE money now than before.

    “But that will never happen. Whoever is President in December will sign into law a bill that funds all of this back rent. All of it. In effect, President Trump gave millions of Americans a five month reprieve from paying rent.”

    That would provoke a taxpayer revolt the likes of which we haven’t seen since December 16, 1773.

    1. Also possibly of interest: https://d279m997dpfwgl.cloudfront.net/wp/2020/08/DOC082620.pdf

      MA, NY, & CA have similar laws — judge upheld MA’s

  5. THIS is the real reason not to vote for Trump.

    He will absolutely trash the Constitution and there will be zero constraint on him.

    Laws? Processes?

    Not anymore.

    1. Because you think a Democratic president wouldn’t have done the same thing?

      1. No because I think ANY president other than Trump wouldn’t have done it.

        1. Given all the crap that happened during Obama (start with Operation Choke Point), I think you really need to reconsider that position.

          1. I started with Operation Choke Point. It didn’t cause me to reconsider apedad’s position. Where else should I look?

            1. Probably back to child hood when you were an awkward kid who sucked at sports. That’s were most mindless liberals are made.

              1. LOL if you think NToJ is a liberal.

                Also LOL if you think liberals all suck at sports. Recent events suggest otherwise pretty strongly.

              2. I doubt you’d say something like this to my face. I’ll have you know that in high school I was an active participant in the Free Market Education Foundation, where I spread the philosophies of Milton Friedman and Frederic Bastiat to my fellow classmates. I was also was a debate champion in college.

                Fuck, oops that wasn’t me at all. It was Ted Cruz.

            2. Perhaps by re-examining it and many of the other actions Obama took. Unless you’re going to try to argue punishing without trial entire classes of politically unfavorable businesses is constitutional.

              1. Ok so now I’ve reexamined Operation Choke Point and the IRS targeting controversy. But it didn’t cause me to reconsider apedad’s position. Do you have anything else?

            3. If you’re interested, here.

              https://www.cato.org/publications/commentary/top-10-ways-obama-violated-constitution-during-presidency

              Some of the smaller, but more telling examples with Obamacare…

              “The Labor Department announced in February 2013 that it was delaying for a year the part of the law that limits how much people have to spend on their own insurance. This may have been sensible, but changing a law requires actual legislation.”

              That’s the real issue. Changing the law requires actual legislation. But Executive Actions that aren’t challenged, well…

        2. The whole pen-and-phone strategy was designed around abusing ‘loopholes’ in the Constitution, such as preventing anyone from having standing to challenge the rules/orders, presenting treaties as mere executive agreements, etc.

  6. Isn’t federalism great?

    But the most amazing thing is that last paragraph, suggesting that the new President (and, presumbly, Congress) will give landlords a huge amount of money. Let’s go over the options:
    – If Trump is re-elected, why on earth would he do that? What is it about the last 4 years of Trump or the last 40 years of the Republican Party that has given you the impression that they care about the consequences of their actions for the Federal accounts or for anyone else? Trump will simply hand-waive and claim with a straight face that no such problem exists, and that if it does exist it is Nancy Pelosi’s fault, or Hillary Clinton’s, or the Dems that run the big cities, or whoever’s other than his.

    – If Biden is elected, why on earth would he do that? It wouldn’t be the landlords that got him there, so he would owe them nothing, it would be Trump’s mess he’d be asked to clean up, and giving money to landlords would be wildly unpopular with the people that did get him elected.

    1. What is it about the last 4 years of Trump or the last 40 years of the Republican Party that has given you the impression that they care about the consequences of their actions for the Federal accounts or for anyone else?

      “care about the consequences”? Kind of a loaded, biased question, don’t you think? As for the rest of that paragraph – that’s just knee-jerking.

      The point is that there are VERY valid reasons for NOT giving landlords huge amounts of money. As one of the more liberal commenters on this board, I’d have expected you to clap your hands at a government who didn’t pass out billions to landlords, but because it’s Trump, you think it’s a bad thing. This is more a reflection on you than on Trump “arguing that no such problem exists, and that if it does exist it is Nancy Pelosi’s fault, or Hillary Clinton’s, or the Dems that run the big cities, or whoever’s other than his”.

  7. ” . . . and destruction of animals or articles believed to be sources of infection.”

    There you are.
    Since renters are neither men nor women anymore, per the Supreme Court, and since we already terminate human life for the convenience of the fetal host, where’s the problem in just killing them and cremating the bodies?

    As a CDC edict, would this not only apply to tenants who are tested positive for the Communist Chinese Virus?
    This ignores the available, less restrictive, option of immediately arresting the evicted as biological warfare agents and putting them in a secure hospital until 10 years after a vaccine is approved.

  8. No (incumbent) politician wants 30 million people evicted between now and election day.

    This rule pushes that reckoning off into the future, past the election day. So even if it is challenged in court and the landlords “win,” the incumbents will have already won as long as the decision is after November 3.

    And if I’m wrong? Well this is a great reason for the parties to authorize a landlord and bank bailout/stimulus bill in 2021.

    1. Under Treasury regulations as they stand, the banks will never need a bailout. Because during the crisis of 2008, the Treasury quietly decreased the percentage of deposits that banks are required to keep as reserves to zero.

      This means the money multiplier is now infinity, and any bank can pull all the money it wants out of its nether regions.

  9. The fact that the CDC can even contemplate taking this action is utter insanity to me.

    1. If it’s any consolation, it’s not CDC leadership – this is the President straining to justify via the CDC enabling act.

      But yeah, I hate this.
      I do think there should be an eviction moratorium, but even though I like big government (generally on the social safety net side) I don’t see how the federal government has this power at all; it’s gotta be locally handled.

      1. We agree on the ‘this is a local issue, and must be dealt with locally’. I am not opposed to an eviction moratorium so long as it is for a defined emergency, and has a definite start and end point. Also, there has to be some kind of indemnification of the landlord here. They still have to pay their expenses.

        I know because a good friend of mine owns 9 separate units. I’ve heard a lot about how this works and understand the mechanics a lot better.

      2. Sarcastro: Preventing a pandemic is justified as a protective regulation of commerce. And a matter of national security too. Pandemics do not respect state and local boundaries. Dealing with this sort of threat is why we even have a federal government.

        1. I think that causality there is pretty dodgy. From protests to homeless people, standard transmission models are continually stymied. Not that they’re disproven, but we don’t have a good causal connection supported yet.

          For me the reasoning is economic and suffering alleviation. Like, eviction is a lot of suffering and I do think it is incumbent on society to not allow that to happen.
          But if the Feds want to do something, they should use $$ to do so, leaving landlords whole as well. Not this blunt instrument.

          1. I do agree, however, that the Federal Government has robust, national-security level powers to deal with a pandemic. I just don’t see the nexus here.

          2. I don’t think the causality is suspect at all. If you can’t protect your physical space from other human beings when you are sleeping or not paying attention, the probability of COVID-19 spreading will increase.

            I don’t think there is really much doubt about that.

            Of course, if you were right about causation, then the move would not be “reasonably necessary” to prevent the spread of communicable disease. But as a factual matter, I don’t think you are right.

            1. But the quantum of risk can’t be any increase. Otherwise the power is effectively unlimited so long as there are pathogens.

              That’s the issue I have – I don’t see good evidence the risk is commensurate with the power being exercised.

              1. There’s a long-term risk as well. Once you convince landowners that their ability to collect rents is subject to pandemics, they’ll price that in during non-pandemics, shortening the supply of housing. Which, if homelessness is the cause here, will lead to more spread of disease…during the next pandemic.

              2. I am not buying the theory that all federal powers must have some limit other than the political process.

                There is no limiting principle that the judiciary enforces on the number of post offices the federal government may establish. Yet, we would agree that if the federal government bought every building in a city and turned it into a post office, such that the whole city was nothing but post offices, this would be a bad idea.

                Not all bad ideas are prevented by limiting principles.

      3. >If it’s any consolation, it’s not CDC leadership – this is the President

        Cite? One of the interesting things about the Trump Presidency is how little practical control this White House has over the Executive Branch.

        1. Exactly, and I’m waiting to see what Rush Limbough has to say about this — I don’t think Trump’s behind this.

            1. Well, no one’s perfect.

              1. LOL. You’re such a tool.

  10. I see a statutory analysis of the law. I don’t see a constitutional analysis. Under what clause of the constitution is the CDC allowed to prohibit evictions? Some 6th degree of separation stretch of the commerce clause again?

    1. Preventing the spread of a communicable disease protects interstate commerce.

      1. The actual text, however, is limited to “regulat[ing] Commerce” itself, not anything that might vaguely affect it.

        Yes, yes, wheat grown for home consumption and medical marijuana. However, both of those examples are themselves commercial items. And fungible items of commerce at that.

        IMHO, this would be a lot closer to Lopez, where the claim was only that the regulation affected commerce.

        1. Wouldn’t your idea would also invalidate anti-discrimination laws upheld under the commerce clause?

          1. While good ideas, they ARE unconstitutional.

          2. There is always the enabling clause of the 14th amendment.

        2. CC jurisprudence permits laws that merely “affect[] commerce”. You’ve misinterpreted Lopez.

  11. Biden should call out Trump on the debt. Trump promised to eliminate the debt, but instead has bankrupted the country just like he had his own business.

    https://www.thebalance.com/trump-plans-to-reduce-national-debt-4114401

    1. Well, it’s hard to eliminate the debt when you and your Republican cronies are both spending and also refusing to tax.

      1. I’m not Republican, I just believe in math. Cut spending and increase taxes.

        1. Krycheck_2 presumably meant “Trump and his cronies.”

      2. In fairness, his Republican cronies are only approving about 1/3 of what the Democrat cronies wanted. Sadly, we’re still talking $1+ Trillion vs. $3+ Trillion in giveaways.

    2. Ehhh both sides spend like there’s no tomorrow. Only when Republicans hold at least one house and the Dems the president will there be fighting to cut spending. One only wants to “starve the beast” when it’s the other guy’s beast.

      1. Democrats are generally willing to raise revenue to pay for their spending, though.

  12. >”inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.” All of these measures are localized, and limited to prevent the spread of an infection in a single building or location.

    More importantly, none of them are regulatory in nature. These are all things the Feds would do (or/or pay for others to do)…. and thus are Spending Clause powers.

  13. This is asinine, totally unconstitutional and should be struck down.

    1. No right-minded individual has a problem with unelected regulators doing absolutely massive things unforseen by Congress, when it’s the Right Thing To Do. This allows Congress to hide from accountability.

      See also some official going gee I decide the multi-trillion dollar Internet industry is common carriers!

  14. Where is this coming from? And why now?

    1. Russians; not sure if they are trying to help or hurt Trump, but definitely Russians.

    2. It’s an election year. Polling for the President has not been good on COVID.

      This isn’t some mystery, the President issued a press release yesterday. Here it is:

      “I want to make it unmistakably clear that I’m protecting people from evictions.”

      1. All the stay-at-home and business closure orders have been by state and local officials. Trump does not deserve the blame.

        It’s colorable that Trump has powers to do these things at the federal level, but except for things like closing the borders and stopping some international air travel, he hasn’t done them.

        1. Some of his poor polling can be explained by things he said about the pandemic. The President was not serious about it initially, and made loud predictions about what would happen, but they didn’t.

        2. He has been polling pretty much the same or better as he was all throughout 2016 prior to the election.

      2. “affirmatively exhausted their best efforts to pay rent, seek Government rental assistance, and are likely to become homeless due to eviction.”

        This is far more restrictive than Governor Baker’s (RINO-MA) blanket moratorium on *all* evictions that has existed since the spring.

        “Seek[ing] Governmental rental assistance” includes an analysis of family assets so a lot of people won’t be eligible for this.

      3. It’s like the opposite of a mystery. Same reason why Trump wanted his name on the Trumpbux checks, and says he would send out more of them tomorrow if he could, in higher amounts.

  15. It seems that the CDC has determined –
    1. Every tenant is infected with the Communist Chinese Virus.
    2. Everyone evicted will change states.
    3. Landlords do not need to pay for mortgages or maintenance or repairs.

    Well, as long as we follow the science – – – – – – –

    1. That virus should never have taken that Marxist studies course!

    2. ” Landlords do not need to pay for mortgages or maintenance or repairs.”

      That’s the untold aspect of all of this. A lot of landlords are highly leveraged with the presumption that real estate values could only go up. Two decades of ultra-low interest rates encouraged a lot of people to seek a “guaranteed” return in rental properties.

      This is not going to end well.

  16. In New Orleans a tenant handed an eviction notice went right home and allegedly set fire to her apartment building making many other people homeless. She then fled to Texas.

    1. Looks like she was arrested and won’t be homeless any longer.

  17. I wonder if Trump really is trolling a future Biden Administration. Between this and the SSI tax withholding deferment, if Congress doesn’t fund these mandates there is going to be a lot of unhappy people out there. Not a bad way to make lots of headway into the mid-terms in 2022.

    1. Yes, the destruction Trump leaves in his wake is clearly electorally calculated.

      1. And none of that “destruction” is of course the fault of the Democrats that for the last four years did nothing but try to undermine the President, spent their Congressional resource to conduct endless witch hunts, and refused to even engage in bipartisan negotiations with the Administration because they didn’t want him to have a ‘win’ or something like that. Oh forgot about the whole impeachment thing to which was a joke and half.

        The hole we are in is all Trump’s fault though. Only if the People would have done what the elites told them to do an elected Hillary. We could of avoided this all, huh?

        1. Yeah, with types like you the buck always stops with the Dems.

          Even assuming you’re correct, if the guy people voted for because he was the dealmaker is getting repeatedly rolled by the other side, maybe he’s not the guy for the job.

          1. Yeah all Trump’s fault. Why? Because he is Trump and the left doesn’t like him? I think you need to engage in some introspection here and realize that perhaps the left shouldn’t have done what they did. There was no need to declare “the resistance” from the first hour he was elected. That was their choice. And the failure of Congress rests mostly on them for the last two years. They put everything into “get Trump” because I guess that is what they felt they needed to do. And when Congress does that with their agenda then that means nothing else gets done. So yeah the buck does stop to some extent with Pelosi and crew.

    2. Nah, he is just trying to push off problems to gain an electoral advantage. He doesn’t worry about the midterms because he is not a party guy.

  18. What about landlords whose property is mortgaged, and who can’t make their payments because the tenants aren’t paying rent? If the order does not dictate the banks allow them the same delay as their tenants, then the law does not make them whole.

    1. Someone will be left not whole. It will either be the landlords who don’t receive rents, the banks who don’t receive the mortgates, or the taxpayers who have to pay back the landlords and the banks.

    2. I’m not sure that banks are going to want to foreclose.

      *They* can’t evict either, which means they wind up having to manage non-revenue-producing properties that no one is going to want to buy — and they won’t have the defense of lack of resources that the existing owner does.

  19. In addition to 42 CFR § 70.2, the Order also cites 42 CFR § 264 which states (CAPS added for emphasis):
    (a) Promulgation and enforcement by Surgeon General
    The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may 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 beings, and OTHER MEASURES, AS IN HIS JUDGMENT MAY BE NECESSARY.

    Your reasoning around why/how this does not provide authorization for the eviction order would be appreciated.

    1. 1) It is not apparent to me that authorizing the Surgeon General to do something is the same as authorizing the CDC to do something;
      2) 42 CFR 264, unlike 42 CFR 70.2, really is a straight-forward ejusdem generis case. The general words (“OTHER MEASURES, AS IN HIS JUDGMENT MAY BE NECESSARY”) followed an enumeration of two or more things, and so it applies only to things of the same general kind or class specifically mentioned.
      3) The argument would be that inspections, fumigations, disinfections, sanitations, pest exterminations, or destruction of animals or other articles is not the same thing as stopping an eviction. They are dissimilar; inspections, fumigations, disinfections, sanitations, pest exterminations, etc. would usually involve the state invading someone else’s space, not prohibiting a landlord from kicking people out of the building.

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