Property Rights

Trump's Eviction Moratorium Could set a Dangerous Precedent [Updated]

It's a power grab that could undermine federalism and separation of powers, and imperil property rights.

|The Volokh Conspiracy |

On Saturday, the federal government's Center for Disease Control will issue a new regulation barring eviction of millions of residential tenants around the country. If it survives likely legal challenges, the new policy would set a dangerous precedent undermining federalism, the separation of powers, and property rights. Conservatives, in particular, will have reason to regret it when a Democratic president inherits the same sweeping powers.

The CDC policy bars eviction, until the end of the year, of any residential tenant who makes a sworn declaration to the effect that they 1) have "used best efforts to obtain all available government assistance for rent or housing," 2) they expect to earn less than $99,000 ($198,000 for joint tax filers) in 2020 or did not have to report any income to the IRS in 2019, or received a stimulus check under  CARES Act, 3)  "the individual is unable to pay the full rent… due to substantial loss of household income… , a lay-off, or extraordinary out-of-pocket medical expenses" 4) "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" and 5) "eviction would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting."

These rules could potentially apply to a wide range of people. The income cutoff of $99,000 for an individual taxpayer is far above the national poverty line, and indeed far above the median national household income of 61,937. (which includes numerous multi-person households). The requirement that the eviction "would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting" could potentially apply to any situation where the evicted person ends up living in a new home with at least one other person. Having a roommate (including a family member) surely counts as a "shared living setting." Thus, the measure would protect from potential eviction large numbers of people who are clearly not poor, and would not end up homeless if evicted.

Such sweeping action by the executive normally at least requires authorization by Congress. As co-blogger Josh Blackman explains, the claimed authorization here is 42 CFR Section 70.2 a regulation that gives the Director of the CDC the power to "take such measures to prevent such spread of the [communicable] 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." The CDC can take such measures anywhere it deems local and state regulations to be "insufficient" to limit the spread of disease across state borders.

Section 70.2 is itself just a regulation, not a law enacted by Congress; so there may be some question as to whether it itself has legislative authorization [see update below on this issue]. Assuming Section 70.2 does have such authorization, the Administration may be overreaching when it claims that it permits a sweeping nationwide eviction moratorium.

As Josh notes, the possible measures listed in the regulation—"inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection" are all relatively narrowly targeted policies focused on specific sources of infection, not wide-ranging nationwide regulations that apply regardless of how much danger there is in the particular location. Esjudem generis,  a standard canon of legal interpretation, requires that anything in a list of items in a law should be interpreted as being "of the same kind" as other items on the same list. Here, everything on the list seems to be relatively limited in scope. Thus, the regulation only permits narrowly targeted, localized restrictions.

On the other hand, the administration can argue that these specific examples are just meant to be illustrative and all they really have in common with each other is that they are all examples of measures that might be thought "reasonably necessary" to limit the spread of disease.  On that theory, Section 70.2 would allow the CDC to impose almost any regulation it wanted, so long as there is some minimally plausible argument that it would limit the spread of a communicable disease.

And note that, under the text of the regulation, the CDC need not prove that the regulations in question really are "reasonably necessary" or that state restrictions really are "insufficient." They need only assert ("deem") that such is the case.

This broad interpretation of the regulation would give the executive the power to restrict almost any type of activity. Pretty much any economic transaction or movement of people and  goods could potentially spread disease in some way. Nor is that authority limited to particularly deadly diseases such as Covid-19. It could just as readily apply to virtually any other communicable disease, such as the flu or even the common cold.

Every year, thousands of people die because of the flu, and restrictions on mobility or on economic and social activity could  be seen as "reasonable" ways to limit its spread. 42 CFR Section 70.1 (on which the definition of disease in Section 70.2 is based) in fact defines "communicable diseases" as "illnesses due to infectious agents or their toxic products, which may be transmitted from a reservoir to a susceptible host either directly as from an infected person or animal or indirectly through the agency of an intermediate plant or animal host, vector, or the inanimate environment." Notice that this applies to any disease spread by "infectious agents," regardless of severity. The flu and the common cold clearly qualify!

If Trump can use this authority to impose a nationwide eviction moratorium, Joe Biden (or some other future president) could use it to impose a nationwide mask mandate, a nationwide lockdown, or just about any other restriction of any activity that could potentially reduce the spread of the flu, the common cold, or any other disease.

Such virtually limitless executive authority to impose restrictions and mandates would make a hash of the separation of powers, enabling the president to circumvent Congress's authority on a massive scale. It also would completely undermine any semblance of "nondelegation" restrictions on grants of power to the executive. If Section 70.2 is authorized by Congress and has the broad scope the administration claims, it would virtually gut nondelegation. If Congress can delegate the power to suppress virtually any activity of any kind, so long as the CDC claims that doing so is "reasonably necessary" to reduce the spread of disease, it is hard to see how any meaningful limits on delegation would remain.

There are similar problems with the administration's ultrabroad interpretations of statutes delegating power over immigration and trade. But extending such arguments to the suppression of purely domestic economic and social activity further exacerbates the danger.

The administration's position threatens federalism, as much as separation of powers. If the executive can suppress pretty much any type of local activity so long as the CDC claims that it risks transmitting contagious diseases and state law is "insufficient," it can intrude in numerous areas of public policy that would otherwise be left to state or local control. At the very least, displacement of state or local power by the the feds would require congressional legislation, not just executive whim. Conservatives who may think such power can safely be entrusted to Trump will not be happy the next time a Democrat wields it, as could well happen as soon as next January.

A sweeping nationwide eviction moratorium is also a massive infringement on private property rights. Landlords may be stuck holding the bag for numerous tenants who refuse to pay. The same logic that justifies the moratorium can also be used to authorize virtually any other restriction on property rights, so long as the CDC claims that imposing it might limit the spread of some communicable disease. And that can be said of almost any regulation limiting property rights. This measure and the dangerously broad logic underlying it is yet another addition to the Trump administration's already terrible record on property rights.

Josh Blackman posits that Congress will eventually enact legislation compensating landlords. But it is far from clear that will actually happen, and especially if it will happen fast enough to keep many smaller landlords from falling into dire financial straits. The same goes for efforts to recoup unpaid rent from tenants when the moratorium ends.

Moreover, whoever wins the presidential election might have strong political incentives to extend the moratorium for months to come. After all, the broad power implied by the administration's interpretation of Section 70.2 does not impose any time limits, or any limitations based on the severity of the disease threat the regulations are supposedly combating. Even after a Covid vaccine is discovered and deployed, the administration could potentially argue that continuing the moratorium is necessary, because the vaccine may not be 100% effective, and thus some disease risk remains

Landlords could potentially recoup their losses by filing lawsuits under the Takings Clause of the Fifth Amendment. In my view, this sort of measure probably should be considered a taking. But courts have been reluctant to rule that state-imposed rent moratoria are takings, and the same deference is likely to be applied to a federal policy.

The administration's immigration restrictions are currently being challenged on nondelegation grounds, and similar lawsuits will likely be filed against the eviction moratorium. Hopefully, the plaintiffs will prevail in both cases. That may be the best prospect for overturning this measure in court.

Alternatively, the canon against interpreting statutes in ways that "raise constitutional problems" will lead courts to interpret Section 70.2 and its authorizing statute narrowly, thereby invalidating the moratorium, but preserving the statutes and regulations as sources of authority for more narrowly targeted public health measures.

Some might argue that this action will not set a dangerous precedent because the authority to impose moratoria and other restrictions created by Section 70.2 is given to the head of the CDC, an expert agency that is supposed to be guided by scientific evidence, not political or ideological imperatives. But the CDC is hardly immune to political pressure from the president and other politicians, as shown by a variety of instances where the Trump administration has bent the agency to its will. It is likely that political pressure played a significant role in this policy, as well. Moreover, even the most expert bureaucrats often have political agendas of their own. Rarely, if ever, is there such a thing as "public health" policy determined purely by technical scientific considerations without reference to morality or ideology.

Finally, it is worth noting that this sweeping moratorium is unnecessary, as well as illegal. There is no massive eviction crisis in the United States. To the contrary, eviction rates have been below normal levels since the start of the Coronavirus crisis in March, as was also true during previous recessions. And that has been the case even in areas where there are no local eviction moratoria. Barring extreme malfeasance of some kind, most landlords do not want to evict tenants during an economic crisis, if only because they know it will be hard to get new ones able to pay as much or more.

If the federal government nonetheless imposes sweeping eviction moratoria, that will incentivize landlords to raise rents or take on fewer tenants in the future, in order to guard against such policies. That will predictably reduce the available housing stock for tenants, especially the poor. The same goes if landlords have to leave the industry because they go bankrupt or otherwise lose large amounts of money.

To the extent that some kind government assistance for needy tenants is desirable during an economic crisis, it is best-provided in the more targeted form of subsidies for poor tenants who otherwise cannot pay, not sweeping eviction moratoria that apply to millions of non-poor tenants, and leave landlords holding the bag.

UPDATE: I have made a few minor additions to this post.

UPDATE #2: The statute authorizing Section 70.2 is apparently 42 U.S.C. Section 264(a), which reads as follows:

The Surgeon General, with the approval of the [HHS]  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.

The wording here is very similar to that of the regulation. It therefore raises the same sorts of issues as those described above with respect to 42 CFR Section 70.2. Most obviously, the broad interpretation necessary to justify the eviction moratorium raises nondelegation problems, and poses a grave threat to federalism, the separation of powers, and property rights.

The other interesting thing about 42 USC Section 264(a) is that it delegates the relevant authority to the Surgeon General, rather than the Director of the CDC, as Section 70.2 does. I am not sure whether that makes the regulation illegal. Perhaps the Surgeon General can somehow delegate his power to the director. At least for the moment, I will leave this particular issue to others with greater relevant expertise on the relationship between the Surgeon General and the CDC.

NEXT: America's National Debt Will Be Larger Than the Economy Next Year

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  1. Is this ban on evictions really coming from the white house ?
    or is it the CDC pulling the Swamp power grab?

    1. I’m curious about the same point. I suppose we’ll find out in the next few days, but one would assume that, if this had originated with the White House, there would have been an announcement from the White House.

      Still, I’ve said all along that Trump isn’t ideologically conservative or libertarian, he just lacks an ideological motive for refusing to do conservative or libertarian things where they’re politically pragmatic.

      Which makes him better than your average RINO, and enormously better than Democrats, but it still implies that where doing something contrary to our ideology is politically pragmatic, he will.

      1. The White House may be involved:
        https://www.rollcall.com/2020/09/01/eviction-ban-white-house-coronavirus/

        Or he may be giving Dr. Fauci enough rope to hang himself with.

          1. To clarify I was asking about “may” re: “The White House may be involved”. The second “may” in your comment is idiotic and I’m not inviting a discussion of it.

            1. Too late! Calling it idiotic and saying you will not invite discussion of it both are in fact discussion of it.

    2. If this is an unsanctioned power grab by the CDC, then the White House is doing a whole lot of trumpeting for an unsanctioned power grab. https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-working-stop-evictions-protect-americans-homes-covid-19-pandemic/

      1. Joe, Brett, and Dr. Ed, wondering if Trump is behind this stupid, autocratic, and wasteful policy.

        Pro tip: Is the policy stupid, autocratic, and wasteful? If yes, Trump is behind it.

        He has been talking about it, he issued an executive order, this is all marketing. He is what conservatives used to hate: A politician who literally tries to buy votes. You do understand what this is about, don’t you?

        I can’t believe you are creating a weird “Fauci is behind this” conspiracy theory. This policy does nothing, really, to stop the virus and Fauci has never been heard saying we need anything like this. But Trump has. Trump pushed it. Trump thinks it will get him votes but not cost him any. Of course, if Obama did this, Joe, Brett, and Dr. Ed would be looking for his head on a pike. But they’ll just pretend their Dear Leader is just following sound medical advice…..

        If you three don’t see that Trump is doing this, you need to take that cognitive test Trump is so proud to have passed. Far from hiding it, he is crowing about it. Jeezus.

        1. It’s a wasteful policy to keep people from being evicted from their homes?

          Illegal? Probably to almost certainly, the way it was done. But “wasteful”?

          1. Wasteful? Yeah, almost certainly, given what it’s going to do to the housing market.

    3. Perhaps it is meant to apply to the White House?!?

  2. The entire administrative state should be dismantled.

    Unelected, unfireable, unaccountable Leftist bureaucrats should not be making law.

    1. American society has already considered and rejected your opinions, Sam.

      You must like whining about it.

      1. “American society has already considered and rejected your opinions, Sam.”

        American society wants “Unelected, unfireable, unaccountable Leftist bureaucrats…making law?”

        Some people really live in a bubble, don’t they?

  3. Eh I stopped caring about this about two minutes in. Maybe we can throw it on the reparations tab and call it even.

  4. Completely off topic comment that I know Sarcastro will see. Check out the John Boyega GQ interview. It confirms how he was deliberately marginalized by Disney.

    https://www.gq-magazine.co.uk/culture/article/john-boyega-interview-2020

  5. Trump plays three dimensional chess and should this be thrown out, what will it do to other criminal penalties for *other* administrative law violations?

    He may be doing this (a) intending to be sued and (b) giving him an excuse to fire Dr. Fauci. Trump is ADHD and you can not apply linear thinking to him, you have to use multidimensional relational thinking to understand him.

    Trump may also be quite aware that people are thinking about Biden using these powers — and may be hoping that people also do likewise and instead decide to vote for Trump.

    But this is nothing that a lot of Democratic (and one RINO) Governors have been doing since March, and is an expansion on something the Federal Government is already doing with property purchased with a FHA loan.

    I think the battle was lost when Federal courts failed to uphold the Privileges & Immunizes clause and permitted states to embargo Americans.

    1. I could see him deliberately over-reaching to get the courts on record that it wasn’t permissible, the way he got the Democrats on record saying the election could not, legally, be delayed.

      But I could also see him overreaching just because he thinks it’s a good idea. He’s done stupid stuff before just to score short term political gains, like that bump stock ban.

      1. I could see him doing this to cause a social revolution so that his reptilian allies from the Alpha Draconis system have an easier time swooping in to feed on our precious planetary resources.

      2. Bump stocks were an outside issue, but he’s a real estate guy.
        I mean, this would affect Trump Tower, wouldn’t it?

    2. So, Dr. Ed’s delusional.

      This is pure marketing. There will be no grand precedent here. Wickard will still be good law when this is over, for better or worse. Trump just wants to try to buy votes (like he is with the payroll tax deferral scam) and then blame “Obama-judges” when it is pointed out that he is trampling all over the Constitution and Congress. And you fall for it. Every time.

      1. Dr. Ed’s mad, not delusional….

  6. I’m sorry, but this is just plain crazy. There is no way I see that the CDC has this kind of power. Think of what else they could ‘regulate’ in the name of addressing the pandemic.

    I would not like it any more if it were done at the state level, but that is something you could argue falls within the police powers of the state.

    1. Conversely, think of what a SCOTUS decision saying that they *can’t* do this will mean.

      Trump’s an anti-bureaucracy guy, and he kinda knows that this will be challenged.

  7. If the term doesn’t fit, you must evict.

  8. This is politically brilliant. I don’t like the statist overreach at all, and not supporting this, but this certainly isn’t anything uniquely novel relative to other Federal actions or ripping up of separation of powers by Congress.
    Congress had the power to act. They thumbed their nose at their responsibilities to score points against Trump in an election year. They refused to negotiate on items like this in August, so Trump did an end run. Its friggin brilliant, and I’m enjoying the look I imagine Pelosi has etched into her face right now. Let the dems sue Trump to stop this. That’s what they did for every other action he took to further his policies.

    1. The other thing is that it ain’t gonna work.

      It will in a state like Massachusetts where unpaid rent is the *only* thing you can get a court to evict someone for, but Massachusetts already has a total moratorium anyway.

      1: If you can still evict for any other violation of the lease, exactly how hard would it be to find some technicality that the tenant’s violated.

      And what’s often overlooked is that most leases run for only 12 months at which point (depending on state law) the tenant becomes a “tenant at will” who can be evicted with a months notice for no cause at all. And of those leases which are renewed annually, roughly half will expire between June 1 & December 31st and neither party is required to renew it.

      And every landlord I know has a stated policy of not renewing a lease unless/until all rent payments are current.

      So they are not evicting for unpaid rent, they are evicting because the lease has expired. It happens all the time — they want the unit for a daughter-in-law, whatever.

      And the other thing that no one has thought of is extra-legal evictions….

    2. This is definitely unique and novel. Even Blackman won’t go along with this one. When Trump has lost Josh Blackman,……

      What this is is chaos. It is plainly not legal. But tenants won’t pay rent, but will owe it and hell to pay when it comes due. Landlords will be stiffed in the short-term and mostly in the long-term, plus legal expenses plus not knowing how this will all be resolved. It will get challenged and it will be struck down. Literally everyone (and especially tax payers) will lose except, if people are really that stupid, Trump.

      And judging by the reliable Trumpkins on here, there isn’t a policy so stupid that they won’t support it so long as Trump makes a big announcement about it. (Side note: How quickly they pivot from “this must be Fauci’s dumb policy!” to “Trump is a brilliant tactician, let’s blow him again!”)

      1. It’s almost certainly not legal. But, as for the parade of evils…

        Many of the states already had moratoriums on evictions due to the COVID emergency. California, New York, Massachusetts, New Jersey, Oregon, etc….

        Some of those were challenged, and the challengers lost.

        1. Not completely, Armchair — MA’s goes to the SJC on the 26th, and Charlie Parker called out 1000 Guardsmen last weekend because people aren’t happy with him.

          See: https://howiecarrshow.com/2020/08/31/the-natives-are-getting-restless/

          There would be a movement to impeach him if we had that in the state constitution.

      2. Nova, I’m saying it is BOTH.

        You clearly can’t comprehend multidimensional nonlinear thinking.

  9. I don’t think ejusdem generis applies here. The rule applies when general words follow specific, not (as here) when a specific term (“reasonably necessary”) is followed by an enumerated list of specific items. Even if you treat “reasonably necessary” as a general term, ejusdem generis doesn’t apply, because it’s limited to those circumstances in which the general term follows. That may seem arbitrary but there are reasons not to apply ejusdem generis in the general-specific. From Scalia and Leiter’s Reading Law:

    “Following the general with specifics can serve the function of making doubly sure that the broad (and intended-to-be-broad) general term is taken to include the specifics. Some formulations suggest or even specifically provide this belt-and-suspenders function by introducing the specifics with a term such as including or even including without limitation (“all buildings, including [without limitation] assembly houses, courthouses, jails, police stations, and government offices”). But even without those prefatory words, the enumeration of the specifics can be thought to perform the belt-and-suspenders function. Enumerating the specifics before the general, on the other hand, cannot reasonably be interpreted as having such a function. This is perhaps demonstrated by the fact that there is no commonly used verbal formulation (the equivalent of including without limitation in the general-followed-by-specific context) that makes that function clear in the specific-followed-by-general context. One never encounters a provision that reads “all assembly houses, courthouses, jails, police stations, government offices, and, without limitation by reason of the foregoing, all other buildings.”

    1. The more appropriate canon is the associated-words canon.

      1. Also you misspelled ejusdem.

        1. Ejus to has cheezburger, but ejusdem all up.

  10. As a former landlord – a common observation, tenants that pay below market rents or get free rent tend to take worse care of the property, cause more damage etc.

    The bigger long term problem is the creation / expansion of the tenant class that develops the sense of entitlement, ie deserve free rent, etc

    1. Conversely, maybe it will do something about the sense of entitlement among the landlord class – specifically the notion that they are entitled to extract rents, having done nothing except own property. Maybe this is the incentive they need to start doing something productive with their lives instead of just leeching off the money earned by their tenants.

      1. Said the guy who never earned a dime.

      2. The people renting from them think they are valuable.

        1. Says who? Based on the renters I’ve talked to, I doubt many think landlords provide a valuable service. Certainly not commensurate with the rents they are able to extract.

          1. Says the fact that they pay rent.

            1. As opposed to doing what, exactly? We’re talking about a basic necessity of life, not buying some luxury good. Most people who rent are doing so because they can’t afford to own a home. If they can’t get public housing, what choice do they have but to pay a market rate for rent? Go live under a bridge?

              By the same token, I guess you could say that residents of Flint, MI are fine with their water quality – we’re they not, they could just move elsewhere, right? And then why do people on this site get so bent out of shape when a city enacts a gun control measure, or raises taxes, or regulates employers, etc.? Obviously it doesn’t bother the people living there; if it did, they could just move to a different jurisdiction.

              Maybe you should be able to object to aspects of a system without having to completely opt out.

              1. “As opposed to doing what, exactly?”

                Not paying the rent.

                “We’re talking about a basic necessity of life, not buying some luxury good.”

                That’s why they should rent someplace else. If the place they are renting is the best value that exists, how does putting the landlord out of business do anything but make the tenant worse off? (As you said, they have to rent from somebody.)

                “…what choice do they have but to pay a market rate for rent? Go live under a bridge?”

                So it’s the market rate but “not commensurate” with the “valuable service” landlords provide? Make up your mind.

                “By the same token, I guess you could say that residents of Flint, MI are fine with their water quality…”

                That’s not the same thing at all. In the Flint case, you’re talking about the government switching to a different water source (Flint River) without applying corrosion inhibitors to the water. The residents didn’t go to market and find water, they took water from the City. Your solution to housing is to outlaw landlords, I guess replaced by “public housing” run by… places like the City of Flint? How is that going to help the poor?

                “Maybe you should be able to object to aspects of a system without having to completely opt out.”

                You can complain all you want about the system. What we were talking about was a voluntary transaction between two people, not some “system”. The solution to being in a voluntary transaction with someone you don’t like, is to terminate. I wish my food and clothes and housing cost less, too. And if I think I’m paying too much for food, clothing, or housing, I shop around.

                1. “That’s why they should rent someplace else.”

                  How does that solve the problem of landlords being able to derive profits from the value of the land itself without doing anything to earn it? Whether its the current landlord or the one down the street who extracts his rents, the same problem remains.

                  “So it’s the market rate but “not commensurate” with the “valuable service” landlords provide? Make up your mind.”

                  Why, when these are two distinct concepts. You may take it as an article of faith that the market price necessarily reflects the social value of a given good or service; I don’t. Whether due to monopolies, information asymmetries, externalities, or many other market distortions, the price of something is often very different than its value.

                  “In the Flint case, you’re talking about the government switching to a different water source”

                  How is the fact that the government was at fault a salient distinction? How would it be different if they had contracted with a private entity that made the switch? Or instead, how about someone who doesn’t like all the smog in their city (put in the air by private parties), yet refuses to move to the country. Do they actually think the smog is “valuable” because they continue to breathe it in, when they could go somewhere else?

                  The point is that you are trying to justify the current state of affairs based on a theoretical notion of implied consent, when actual consent is illusory. Just as someone staying in a city with smog doesn’t mean they like the smog, someone renting from a landlord doesn’t suggest that they agree that the landlord provides a valuable service, particularly when they have no other real choice.

                  1. “Whether its the current landlord or the one down the street who extracts his rents, the same problem remains.”

                    It’s not a problem. If you criminalized property ownership, there would be fewer places to live. Which would make current renters worse off.

                    “…the price of something is often very different than its value.”

                    Assuming there is a market distortion affecting the price of rent, how would you have any idea what the correct “social value” is? I don’t have to assume a distorted market is a perfect reflection of “social value”. I just have to assume it’s more a more perfect reflection than your opinion.

                    “How would it be different if they had contracted with a private entity that made the switch?”

                    Sovereign immunity may make it harder for them to enforce their rights, for one. But it matters because you should expect public providers to be worse at servicing customers than private ones.

                    “The point is that you are trying to justify the current state of affairs based on a theoretical notion of implied consent…”

                    Wrong. We were talking about a lease. The consent in a lease is not “implied”. It is actual. You brought up smog, not me.

      3. My, my…This is fascinating. By all means Aunt Teefah, please tell Readership what the property owner should do with the property they own.

        1. I’m less concerned about what they do with the property they have, and more concerned about them (and other idle extractors of wealth) having less property in the first place.

          As Adam Smith said in The Wealth of Nations, landlords “love to reap where they never sowed, and demand a rent even for land’s natural produce.” And further: “[Landlords] are the only one of the three orders whose revenue costs them neither labour nor care, but comes to them, as it were, of its own accord, and independent of any plan or project of their own. That indolence, which is the natural effect of the ease and security of their situation, renders them too often, not only ignorant, but incapable of that application of mind.”

          That assessment is as accurate today as it was then. I cannot speak to any comprehensive approach, but a good first step would be a massive increase in taxes on capital gains. Perhaps that would incentivize landlords and other rent seekers to give up their parasitic ways in favor of productive labor.

          1. “I cannot speak to any comprehensive approach, but a good first step would be a massive increase in taxes on capital gains. Perhaps that would incentivize landlords and other rent seekers to give up their parasitic ways in favor of productive labor.”

            This doesn’t work. First of all, rental income is ordinary income, not capital gains. The sale of land (sometimes) is treated as a capital gain. But if you increased capital gains taxes, that would discourage sellers from selling their property (and buyers from buying it).

            Your mistake is thinking that there is a tax solution to the problem you’ve identified, which is you think rent is too high. There is no way to increase taxes and cause rent to decrease. Because taxes are paid by renters. Example: If you increase property taxes, the owner of rental property will pass the increase on to renters. If you increase income taxes, the owner will pass their rental income decreases (due to the taxes) to the renters. If you increase capital gains, not only will that discourage sales (therefore decreasing the overall supply of housing), the loss in capital gains taxes are still passed on to renters. Suppose Seller A has a quadruplex with four renters. Buyer B wants to purchase it and build multifamily housing (apartments) on the land instead. If capital gains taxes are increased, Seller A may be discouraged from selling at all, since he may be better off just holding on to it. But assume he does sell, the sales price is directly affected by capital gains taxes; as they increase, the amount he needs to sell it for increases as well, to cover whatever profit he insists on making through any voluntary sale. This increased price is then passed on to Buyer B. Where does Buyer B recoup this price? In future rents. So the difference in value is paid by those renters.

            You might ask why Seller A or Buyer B don’t just take less profit. Often they do! But as the profits available to investors in, say, multifamily housing decreases, so does the capital available to fund those investments. The consequences of that is less housing, leading to a shortage, that is paid by… you guessed it, renters. You simply cannot lower the price of renting by tax increases, full stop. The government isn’t a magician.

            1. “Your mistake is thinking that there is a tax solution to the problem you’ve identified, which is you think rent is too high.”

              Except that I never said that rent was too high. It may well be, at least in some parts of the country. But the problem I’ve identified is the same one Adam Smith did; landlords (and other rent seekers, by the way) extracting wealth based on nothing more than the value of their existing property. Wealth begetting more wealth without any corresponding effort on their parts. This may be related to rents being too high, but it is nonetheless a distinct problem.

              Taxation is absolutely a solution to this problem. If taxed accordingly, landlords can earn money commensurate with their productive efforts, not based on the value of the land itself, thereby optimizing the supply of landlords and funding social projects (including public housing). It would also have the salutary effect of reducing the political and social power of the idle rich.

              In that way, the government most certainly *is* a magician. It can make your ill-gotten wealth . . . disappear.

              1. “If taxed accordingly, landlords can earn money commensurate with their productive efforts…”

                Or they’ll earn the same profit by passing the tax on to renters. Which is what they do now. That was Coase’s point to Pigou; Pigovian taxes don’t work because of the reciprocal nature of the problem. Assuming a taxing authority could possibly know what the appropriate tax rate was to fund the externality (which Pigou admitted was not the case), it wouldn’t matter anyway, since all obligations are reciprocal. If you make it more expensive for the polluter, he’ll just charge the cost to his own customers.

                Now, if your goal is to tax landowners out of existence, great, but taxes like that don’t generate revenue. (People won’t engage in an activity that is too expensive due to taxes; they’ll just do something else.) If you make it impossible for landlords to make money renting (by overtaxing their ordinary income), they won’t rent. Then you can try and hit them for capital gains, which will simply discourage sales. Finally, you try and attack them with property taxes, but since your other tax regimes and policies have made their property worthless, there’s nothing left to tax. So they’ll just sit on the land, the supply of livable land will decrease, and poor people will really get the shaft, just like they always have, throughout history, when they listen to populists like you.

              2. The alternative is just to have the government take all the land and dole it out to people. I suppose that’s what you mean by “ill-gotten wealth . . . disappear.” But that just makes the problem worse. Now you have a finite resource doled out not based on a merely imperfect market, but by a definitely, massively imperfect centrally planned government. Should we just forget you complaining about the City of Flint’s incompetence?

                If you want to get serious about housing, here are some solutions. No property tax caps or breaks for the elderly. No zoning laws. No prohibitions on vertical and multifamily construction.

                If you want to do away with idle wealth, you can do that with a massive increase in estate taxes. Don’t let people inherit. Problem solved.

                1. This is a problem with framing. Aunt Teefah doesn’t think that rents are too high, s/he thinks that rent as a concept is evil. Because landlords sit in grand chairs using renters on their hands and knees as foot rests while other renters fan the landlord to keep him cool.

  11. Ilya and Josh are agreeing, as well as both sides of the “commentariat” here. This must be overreach.

    1. Well, sure it’s overreach. Stands a good chance of being popular overreach, tenants outnumbering landlords and all. But the medium, forget long term, consequences, will be terrible.

      If I had thought this country was going to survive in recognizable form, I’d be terribly upset. As just another step in its death, I have trouble getting worked up about it.

      1. It is curious that you began not caring about the President destroying the country only recently.

        1. Who said it was just this President destroying the country?

          It’s entirely predictable what would happen from the series of events that proceed it in regards to previous executive orders and then the suspension of rights during the pandemic.

          Obama set the stage with DACA, a broad executive order that changed the entire immigration system, without Congress. It worked because it was popular with the base. That was doubled down on by a number of court decisions that said the next president couldn’t just reverse a previous one’s executive order. The lesson taken away here…even if an executive order was illegal, if it was popular and no one challenged it fast enough, it would stand. And help you with the people.

          Then you had a whole bunch of executive orders at the state level that abrograted a bunch of rights due to the pandemic. Those have been frankly, amazing. But little challenged, and when they were, the challenges were often shot down.

          On these grounds, what Trump does here makes perfect sense. Make a popular executive order that’s grey to illegal, citing the pandemic. Help people, gain some popularity in the meantime. And if someone brings a court case to end it, you’ll probably fail. That’s OK, you tried to help people. But maybe you won’t fail, because of the reliance interests that have formed.

          The ground was set previously. This is just a logical continuation.

          1. Yes. Brett was very concerned and loud about the last President destroying the country. But this one’s continuation sends him to quiet acceptance. Very curious.

            Since there’s apparently nothing this President does that will convince pretend conservatives to conclude he’s just wrong, why even insist this is a logical continuation? What difference would it make if it wasn’t? When he doesn’t act like the last President, great. When he does? Also great. Everything is great.

            No difference between state by state, laboratory moratoriums, and the federal government just nationalizing that policy under one obscure federal regulation on pest extermination.

            1. Listen, I agree this particular regulation is almost certainly illegal. In the grand scheme of things, this particular regulation, simply doing what a bunch of states are currently doing…it’s not a “big” illegal.

              For most conservatives, this is a lesser of two evils situation. Biden has promised to order a nationwide shutdown if he’s elected and thinks it necessary. He almost certainly doesn’t have that authority. So, we’re left with a choice. The candidate who is doing something illegal akin to speeding 10 mph over the limit. And the candidate who promises to speed at 50 mph over the limit. The choice there is clear.

              1. Yes, by speculating really hard about the evils a Dem would do in the future, you can rationalize literally anything your guy in the WH does now as not as bad as what you imagine a Dem would bring, and thus ignorable.

                1. We don’t have to speculate about the evils a Dem would do, when they put them in their party platform and campaign websites.

                  Yes, the guy in the WH now is not as bad as what the Democrats are promising to do. Sadly, that’s not saying much at this point.

              2. I don’t think every post has to involve campaign speeches. Since we are so close to an election I guess it’s inevitable. But I didn’t bring up Biden at all, much less tell you to vote for him based on this vote buying attempt by the President.

                1. As I pointed out, these actions don’t exist in a vacuum. Voters are given a choice. And if the choice is between a lesser evil and a greater evil, it behooves one to pick the lesser evil. Unfortunate, but true.

                  1. Are you laboring under the impression that there are Biden voters who are like “President Trump is the lesser of two evils, but I’m still voting for Biden!”

                    By definition people should pick the lesser of two evils. People obviously disagree about that. But the fact that humans should pick the lesser of two evils is not “Unfortunate” at all.

                    1. “Are you laboring…”
                      -No.

                      “Unfortunate…”
                      It is unfortunate. At least for me, I can’t speak to your preferences. I would prefer a situation where I didn’t have to pick the lesser of two evils. Where I could vote for someone who “wasn’t” evil, who stood for what he or she believed in, who had strong moral character, who followed the law scrupulously, who would defend our civil rights.

                      Unfortunately, I’m not given that choice. And when given the choice between a man of questionable moral character who nonetheless appears to be protecting many of our First Amendment rights, and a man who would be less so inclined, it’s a pretty clear choice.

                      And you’ll berate us for our choices. For supporting someone of questionable values, even by our own definition. But you’re not really giving us any better options, only worse ones.

            2. Look, the Constitution has been dying by inches my whole life, I’ve watched as one unconstitutional law after another pioneered new ways of violating it, and hardly ever any judicial pushback. Sometimes the judiciary have even taken the lead in killing it.

              In ’95 Gingrich held out the last chance of averting eventual fiscal meltdown, the balanced budget amendment, and then killed it in front of everybody by making sure it wouldn’t pass.

              in 2007 we jumped off the cliff, fiscally speaking, and then strapped on a rocket backpack and started a vertical power dive.

              And now here we are, many state governments have become openly dictatorial, we have Marxist insurgents rioting in our streets, one major party has embraced positions that would turn us into an over-sized Venezuela, and the other is mostly useless and at war with itself, and the guy I have to put my hopes on clearly doesn’t take the Constitution seriously, and he’s the BETTER of the two in that regard!

              I’m old, I’m tired, and I lost my optimism years ago. All things die in time, including nations. This one’s about ready to check into hospice.

              1. Maybe you should take some ownership for the decline.

          2. Obama set the stage with DACA, a broad executive order that changed the entire immigration system, without Congress. It worked because it was popular with the base. That was doubled down on by a number of court decisions that said the next president couldn’t just reverse a previous one’s executive order. The lesson taken away here…even if an executive order was illegal, if it was popular and no one challenged it fast enough, it would stand. And help you with the people.

            You forgot to include our dear author Ilya Somin is a big supporter of DACA. Now Somin has argued DACA is legal and should stand due to how it was approved. Yet here, using the same process (just a different department), he brings up political pressure and says this should not. Funny how his argument changes based on whether he agrees with the outcome or not. Because DACA did set a dangerous precedent. More than one in fact as you note.

    2. They’re targeting landlords.

      Landlords.

  12. OMG, I agree with what Somin says here. Must be the end of the world is near.

    [Note, like usual with him, its sooooo long that I skimmed some so I reserve the right to disagree with part of it upon seeing other comments.]

    It is however, the highly foreseeable child of the “pen and phone” theory that prior presidents used to applause [not from Somin of course] so ¯\_(ツ)_/.

  13. Trump for the win!
    Get it on record, by courts or reflexive legislation from the dems, that the feds CANNOT do this.
    Then freedom has a small chance no matter how many late mail in ballots are found in a certain Texas county precinct.

  14. In the phrase “reasonably necessary”, “necessary” is the adjective, not “reasonable”. “Reasonably” is the adverb describing the subset of “necessary” measures that may be adopted. In turn, “necessary” means “absolutely essential”, i.e., measures without which it would be impossible to stop the spread of the disease. I don’t think any reasonable person would argue that it’s impossible to stop the spread of disease without an eviction moratorium. For example, Taiwan has managed to stop the disease without eviction moratoriums. Also, it’s obviously unnecessary to stop the eviction of people that have recently recovered from the disease because they have immunity, at least for some period of time. One might think eviction moratorium is a *reasonable* measure but, again, a “reasonably necessary” measure is a type of “necessary” measure, not simply a “reasonable” measure. The regulation does not allow the CDC to implement any “reasonable *or* necessary” measures; the regulation says “reasonably necessary”, i.e., those measures that one might “reasonably” deem “necessary”. An eviction moratorium would not qualify.

  15. This is issue is basically moot from the tenants standpoint – In order to get evicted, the landlord has to file for eviction through the local courts. due covid, most of the courts are basically closed, so the land aint going to get anyone evicted.

    1. THEre is absolutely no reason hearings couldn’t he virtual as many courts are already doing. However in some states the non-eviction orders have expired and courts are starting to hear cases. That is controversial, to the extent that some tenant activists absolutely seem to believe that property owners, who have no rights.

      These is a case in New Orleans of a woman given an eviction order who allegedly set her apartment on fire and made many of her neighbors homeless. She then apparently fled to Texas.

  16. I’m waiting for all this to reach its logical conclusion which ought to be soon now. Then the fun will begin.

    1. I’m thinking a lot of fires in the near future….

      1. Are you suggesting insurance fires or tenant arson?

        I know of a case where a restaurant caught fire and was closed at the beginning of this. It appears to me the Owner of that business is in a better financial situation that other similar restaurants assuming they had adequate insurance.

  17. It’s important that this power be exercised _before_ the express power to close post roads and post roads is exercised; otherwise, the closing of post roads and post offices might be deemed overreach.

    Looking back over the comments from the past few months, I note that many poo-pooed the notion that the Director of the CDC or the Surgeon General might actually utilize the broad powers granted long ago by Congressional Democrats. My point in making the comments back then was to underscore the advice of Thomas Huxley, who suggested that the first lesson of an education is to “teach yourself to do the thing that ought to be done when it ought to be done”; more precisely in this instance, it would have been wise to stifle the overreach before the overreach actually occurred. Both sides of the aisle are guilty: the President and his underlings express no more overreach than Northam of Virginia and his comrades.

  18. If any of the renters are active duty military (as some active duty folks are permitted to live off base), would this become a 3d amendment case? Quartering of soldiers if the property is taken without rent and the landlord is forbidden from removing the soldier.

    1. Based on experience, I very much doubt that situation would occur. Active Duty get a housing allowance as part of pay. If any aren’t paying, a phone call to their Base/CO is usually enough to get everything straightened out real quick.

  19. Fuck the landlords.

    My family has owned property in Maine since before the Revolution. And we’re paying taxes on it now.

    Yet Herr Mills prejudicial 14-day edict, which is backed up by gun-toting locals acting with impunity, prevent our peaceful enjoyment of our property.

    Why is that not a taking?

    More importantly, why should I care about the property rights of others when they didn’t speak up for my property rights. At this point, as far as I’m concerned, it sucks to be them.

    Sucks to be them.

    And that’s what a lot of people have forgotten — defending my property rights to my tar-paper shack (it’s actually far more than that) is why I’m willing to defend your property rights too.

  20. Did you see Q’s latest? This is the beginning of the operation to drain the swamp. Soon there will be mass arrests and indictments unveiled. I’m glad I have my super secret decoder ring ready for action. I hear the “go” signal will come out within the next few days.

    1. 56% of Republicans believe that QAnon is mostly or partly true,

      1. Sarcastr0 — don’t forget that Alex Jones was sorta right about “chemicals in the water turning the frogs gay.”

        It’s the pesticide Atrazine, and the Biology Department at UC Berkley — no bastion of right-wing thought — found that Ateazine was wreaking havoc with male frogs, emasculating 3/4 of them, and turning 10% into females.

        85% of the male frogs (of whatever species UC-B studied) aren’t anymore — Jones wasn’t wrong…

    2. I like this AG — they just arrested 9 Boston cops for $200K in overtime fraud, and they are dealing with the physically-abusive Springfield (MA) PD, a department that’s been problematic for at least 30 years.

      We know that “Operation Crossfire Hurricane” was corrupt, they’ve flipped the FBI’s attorney in a plea deal, and spent the summer leafleting DC with grand jury subpoenas — I’d like to think there’d be at least a few indictments coming out of this mess.

      Super secret decoder ring or not, when the DOJ spends this amount of time and effort on something, they usually wind up with indictments…

  21. The only “precedent” that would be set is that our national government may deal with national problems. That is not dangerous. Instead, the dangerous precedent is the opposite. The idea that when faced with a pandemic our national government must sit on its hands helplessly as the communicable disease spreads, threatening both our basic economic well-being as well as our national security.

    True national decline will come from sitting on our hands and doing nothing, based on theories that any action to solve national problems is dangerous.

    That the regulation in question does not specify that the government will not take inadvisable actions in response to less deadly diseases is a valid point, but not very concerning overall. Effective government action in response to COVID-19, a deadly disease, is already somewhat difficult; we are worried about the CDC director will soon be abusing their power to stop the spread of the common cold? I am sorry, but with all due respect to Ilya Somin, this is not a real concern. This conspiracy-theory level thinking. This is paranoia.

    If we ever reached THAT point, we would have much more serious problems than the CDC authorities granted here.

    The mood for some subset of people is near panic. Some people even think we are in verge of a national collapse. In such a paranoid atmosphere, even common sense moves, such as stopping evictions in the middle of a deadly pandemic are suspect over-reaches. But, sometimes, the medicine is worse than the cure. Here, crippling the government so that it cannot even protect people from a deadly disease is far worse than the imagined apocalyptic scenarios that such limitations are meant to prevent.

    The national mood from some has been set to some degree by our President, who himself has a tendency to embrace conspiracy theories and just in general embraces paranoid lines of reasoning.

    We see that here. Although some of the paranoia is well-intentioned, it is actually a formula for the very national decline that it is intended to prevent. Failure to address national problems in a moderate manner creates the very atmosphere where people start looking for more extreme solutions.

    The Constitution sets up a limited national government, not an ineffectual one.

  22. There is interesting potential to damage the real estate market. You own a house which you rent to a tenant. The lease expires in 90 days, after which you want to sell the house. Your buyers want to move in, not deal with a tenant who has a claim to stick around indefinitely without paying rent. How do you make the sale?

    1. Plus which, I should have mentioned that the buyers themselves are making a forced move—taking early retirement after the loss of their jobs forced a downsizing. Do they get to stay in their existing home instead, mortgage free?

  23. I’m interested in the reaction of the woke set to this. They demonize Trump but occasionally he does something they should actually like. This is one of those times.

    Its also been interesting to see the push back on the administrations efforts to get a vaccine approved promptly.

    One issue has been “safety” but one issue was accepting the results of the trials of a UK based vaccine, apparently the exemplary Single Payer system of the UK isn’t trusted enough?

    1. Ilya’s response is right here. He’s not the most woke, but he’s trying.

  24. Is there anything that CDC does that is not bat-shit stupid on its face?

  25. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3555888

    I found this article with a good background on the underlying authorities. Makes an argument I don’t agree with, but seems relatively well written and EARLY (published in March?!?)

  26. many of you need to read (or reread) the $2.2 trillion CARES act passed in march. trump’s recent EO only extend expiration dates original established in the act.
    in addition to moratorium of evictions it also included;
    suspension of all federally back home mortgage payments (e.g. FHA, VA)
    suspension of all rental payments
    these were set to expire on 07/31/00. the trump EO extended the date until 12/31/00.
    the act included the federal unemployment payments, although at a reduced level.

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