Coronavirus

To Ban Evictions During COVID-19, the CDC Demands Huge Expansion of Executive Power

A mounting number of lawsuits are challenging the Trump administration's claim that it can adopt any policy it deems reasonably necessary to combat the pandemic.

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Lawsuits continue to mount against the Trump administration's September-issued eviction moratorium, which bans landlords from removing tenants for non-payment of rent through the end of the year, and threatens hefty fines and even jail time for property owners who violate it.

The statutes and regulations that the administration and the Centers for Disease Control and Prevention (CDC) are leaning on to justify their moratorium come nowhere close to authorizing a nationwide emergency ban on evictions, say a growing number of plaintiffs. Allowing the order to stand would give the federal bureaucracy near-limitless authority to issue regulations and mandates in the name of public health, they argue.

"I'm not being hyperbolic when I say that if [the CDC's] interpretation is accepted, it means the CDC can issue any of the same orders at all that any of the governors across the country have done," says Luke Wake, an attorney with the Pacific Legal Foundation (PLF). "Business closures, micromanaging the economy, what we can do in our private circles. That would all be under their purview."

On Friday, the PLF filed a lawsuit in the U.S. District Court for the Northern District of Ohio on behalf of several Ohio property management companies and the National Association of Home Builders, all of whom say the CDC's eviction moratorium is preventing them from removing non-paying tenants.

In their complaint, these plaintiffs argue that the CDC's eviction moratorium—which went into effect within days of the text being released, without any opportunity for affected parties to provide feedback—violates the federal Administrative Procedure Act's notice and comment requirements.

They also argue that the federal law the CDC's order rests on does not give the executive branch carte blanche to issue an eviction moratorium.

That law, the Public Health Services Act, gives federal public health officials the authority to make regulations "reasonably necessary" to prevent the interstate spread of communicable disease, including "inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection."

The CDC, in the text of its emergency order, lists a number of explanations for why a moratorium is "reasonably necessary" to prevent the spread of COVID-19.

Absent its eviction ban, up to 40 million renters would be at risk of eviction, the order reads, citing an upper-end estimate put out by the Colorado-based COVID-19 Eviction Defense Project. People being evicted are likely to move in with family, friends, or into crowded group settings like homeless shelters, it continues, raising the chances of coronavirus transmission.

Evictions also pose a particular risk of interstate transmission, the CDC argues in the text of its order, because some 15 percent of moves pre-pandemic were between states.

That's a tortured interpretation of the Public Health Services Act and related regulations, counters Wake, saying that measures that could count as "reasonably necessary" under the law are limited by the explicit powers the law gives public health authorities.

"When Congress gives a list of things that says an agency can do XYZ and then has some catchall language we need to interpret that catchall language consistent with the XYZ," he says. That means that the CDC is limited to issuing regulations related to inspection, fumigation, disinfection, and other things spelled out in the Public Health Services Act itself.

The Trump administration has pushed back on that interpretation of the law. Instead, it has argued in legal filings in a separate but related lawsuit challenging its eviction moratorium that the intent of the Public Health Services Act was to give public health officials "maximum flexibility" to combat disease.

Because the law provides the government with the authority to intrude on private property and even detain individuals, an eviction moratorium that limits private property owners' rights to remove non-paying tenants is clearly justified, it argues in a brief filed in early October.

That's an incredibly sweeping claim of power that should concern anyone who thinks there should be some outer bound on the government's coercive authority to respond to the pandemic.

Regrettably, much of the media attention that the CDC's eviction moratorium has attracted has instead focused on whether local and state courts are doing enough to enforce the likely illegal order.

PLF's lawsuit is asking the court for a preliminary injunction against the CDC's eviction moratorium, and ultimately for the order to be declared unlawful and/or unconstitutional. That'd be good news for those who think the powers of the Trump administration—and subsequent administrations—ought to be limited, even during a pandemic.

NEXT: Think This Election Will End Up in Front of the Supreme Court? It's Already There.

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  1. To achieve [bureaucrat’s objective], [bureaucrat] Demands Huge Expansion of [bureaucrat’s] Power

    What a shocker.

    1. I can’t say that I’m especially surprised, no. A body with power wants more? That’s pretty much the entire history of the species.

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  2. The Federal Government does not have this authority. Full stop.

    1. Well, there is the “general welfare” clause of the Constitution.

      The first clause of Article I, Section 8, reads, “The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”

      So, the sky’s the limit! “From each according to his ability, to each according to his need.” Covid-shut-down-mandated unemployed folks NEED free rent, and greedy landlords have the means! Slam dunk! General welfare! General welfare, as defined by Santa Claus and Government Almighty! (Or are they the one and the same, actually?)

      Well anyway, it seems to me, that I NEEEEED a never-ending supply of Jack Daniels, and also of Stormy Daniels, for MY “general welfare”!

      1. There is no general welfare clause of the constitution. If there were there wouldn’t be a need for an enumerated list. The Founding Fathers were smart enough to discuss this in the Federalist Papers because they envisioned ignorant people such as yourself trying to make this argument.

        It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.

        https://guides.loc.gov/federalist-papers/text-41-50

        1. He was being sarcastic, fool. Perhaps if you weren’t so literally literal and completely devoid of a sense of humor you would realize that. That or you’re totally dishonest and dishonestly take someone seriously when they’re honestly not serious. Know what? That’s not mutually exclusive. I lean towards both.

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          2. No. he was being wrong as usual. Why do you and him try to argue sarcasm when you say something completely stupid?

            1. JesseSPAZ NEVER says ANYTHING stupid!

              Have you tried out your “words can’t be crimes” theory yet, JesseSPAZ? You emailed any death threats (in your own name, not encrypted or re-mailed, etc.) to Nancy Pelosi or to a Federal Judge yet? Or are you posting your posts from jail, jailbird?

              Readers, beware! Do not be deceived by JesseAZ! JesseAZ does NOT believe that LIES are bad in ANY way! Only ACTIONS matter, ethically or morally! See https://reason.com/2020/01/01/trumps-inartful-dodges/#comment-8068480
              “Words are words dumbfuck. Actions are where morals and ethics lie.”, says JesseAZ. When confronted with offers of hush money, illegal commands (from a commanding military officer), offers of murder for hire, libel, slander, lies in court, yelling “fire” in a crowded theater, inciting riots, fighting words, forged signatures, threatening to kill elected officials, false representations concerning products or services for sale… these are all “merely” cases of “using words”. Just like the Evil One (AKA “Father of Lies”), Jesse says lies are all A-OK and utterly harmless! So do NOT believe ANYTHING that you hear from JesseAZ!

              Also according to the same source, JesseAZ is TOTALLY on board with dictatorship (presumably so long as it is an “R” dictator that we are talking of).
              With reference to Trump, JesseAZ says…
              “He is not constitutionally bound on any actions he performed.”

              I say again, this is important…
              “He is not constitutionally bound on any actions he performed.”
              We need a BRILLIANTLY persuasive new movie from JesseAZ to “Wake Up, America!”, to flesh out the concept that “The Triumph of The Will of The Trump, Trumps All”! Including the USA Constitution. In fact, USA military personnel should start swearing allegiance to Trump, NOT to some stupid, moldering old piece of paper!
              Previous Powerful People have blazed a path for us to follow here, slackers!!!

      2. So you see, “general Welfare of the people.”
        instead of, “general Welfare of the United States.”
        Check…
        Your bad eye-sight and illiteracy doesn’t create a new Constitution.

        1. Do you have a method for determining the “general Welfare of the United States”, other than to ask the people of the USA, via democracy? One that actually WORKS reliably, for the long term? If so, I’d love to hear it!

          1. lol… I hate to burst your bubble “United States” in the ENTIRETY of the Constitution is addressing the Name of the Federal Government.

            Not in a single place is “The Federal Government” addressed by those words we use today. Many places the ‘States’ are addressed, many places ‘people’ are addressed. EVERYWHERE you see ‘United States’ it is referring to the federal government body.

            Example;
            It’s not the right of citizens of the citizens
            It’s the right of citizens of the Federal Government.

            It’s not “shall not be denied or abridged by the people”
            It’s “shall not be denied or abridged by the federal government”

            There’s many, many, many examples throughout the whole document to rely on for proof.

            1. Example;
              “It’s not the right of citizens of the citizens
              It’s the right of citizens of the Federal Government.”

              It’s a fair amount of hair-splitting. If we go with “connotations” and not “denotations”, though, the above smells pretty statist to me! Do I as a citizen belong to me as a citizen, or do I belong to the Federal Government, as a citizen of said Federal Government? As a libertarian, I believe that I belong to myself! Individual rights first, and then, ONLY by the consent of the governed, a government!

              1. Better way to say it:

                The state exists to serve the citizens. This scheme can work well!

                The citizens exist to serve the State. This scheme can NEVER work well! History shows this to be a WAAAAY ugly “state” of affairs!

                1. You’ve drowned. Thanks for playing though 🙂

                  Gotta watch out for the literally-tons and growing amouts of lefty propaganda out there deceiving innocent minds.

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    2. I thought they were adding it to the list of conditions for having a federally backed loan. Not that that justifies such a ban, but it seems to be how they make rules that they have no authority to make.

    3. This.

      I don’t know that the people in favor of this understand the full implications of the Federal government just inserting itself into private contracts whenever it deems it necessary.

      For lefties, just assume the Trump administration wins this battle. Do you want the Trump administration to have the authority to modify any contracts you have willy nilly? It’d be a damn shame if you lost your cell phone and internet access because the government deemed that you having them was too risky for the public at large.

  3. This is about election year politics.

    Is there something about progressive political ideology that makes them different in this way?

    They’re playing for swing voters. Who wants to be accused of kicking thousands of sick people out of their homes in the weeks before an election?

    1. Yeah why doesn’t Reason realize this. We need to defeat Biden to stop him from destroying contract law with his Socialism or something!

      Ps. Donald Trump is a crook
      Pss. So is Biden

    2. The interesting thing is how liberal judges will view a President Biden administration’s belief that it can “adopt any policy it deems reasonably necessary to combat the pandemic.”

  4. Call it “the Trump administration” all you want, we know it’s the Bureaucratic State. Trump hates the CDC, the CDC hates Trump, they’ll set aside their differences if it means another scrap of power. Fauci wants all the power he can get. Oh, wait, Fauci ain’t got anything to do with the CDC. So how the fuck did he become the head of this coronavirus thing? Why isn’t the CDC running things? Because mission creep means the CDC’s main mission hasn’t got a goddamn thing to do with communicable diseases and they had to create a new agency to do the CDC’s job. Despite the fact that the CDC is ten times the size it used to be it is no longer serving the purpose for which it was created. But it’s in no danger of getting zeroed out of the budget just because it’s no longer serving it’s purpose, government programs don’t work that way.

  5. The CDC has been involved in deep state politics for years. This is nothing new and it crosses administrations. Just like the EPA, the IRS, the FBI, these are organizations that were supposed to be non political but got taken over by rabid bureaucrats and small minded totalitarian idiots. Trump should have cleaned house but the federal bureaucracy carries more weight and power than we realized.

    Term #2 I expect to see some retribution.

    1. The trouble is, Trump crowed about this one.

      It’s the sort of things like this that make me wonder whether Trump’s run out of good thing he could do for us and is turning to bad. I said shortly after he started that he was on track to be the best president of my lifetime, and I’m 66. (Actually that’s an awkward place to draw the line, since if he was better than Eisenhower, no doubt he’d be better than Truman and FDR, at least. OK, maybe just the best prez since Ike, but maybe a lot longer.) Makes me think that if he lost re-election he’d be going out at the top, and would indeed have met that record; while if he’s in another term, he has a chance to blow it.

      But that doesn’t make me want him to lose, because Biden’s bound to be worse than I think Trump could ever be. Biden’s being a crook isn’t what bothers me, I’m used to that in politicians, even some who were good overall. It’s just that he’s clearly senile and would usher in the de facto Harris presidency, and she scares the shit out of me.

      1. Kameltoe Harris should scare the shit out of everyone.

  6. CDC and T are separate entities. nice try tho.

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  9. Clearly evictions are the problem.

  10. How about this one?
    “To improve the mental health and to lower the stress levels of the population, all social media and news casts are suspended indefinitely”.
    “Print media will be allowed only under a subscription model where the product is delivered fully enclosed in opaque covering to prevent inadvertent viewing”.

  11. We need a mounting number of lawsuits challenging what Newsom, et al have done at the state level, and even more aimed at mayors who have come to confuse winning an election with being coronated.

  12. “When Congress gives a list of things that says an agency can do XYZ and then has some catchall language we need to interpret that catchall language consistent with the XYZ,” he says. That means that the CDC is limited to issuing regulations related to inspection, fumigation, disinfection, and other things spelled out in the Public Health Services Act itself.

    Is that like how the Preamble to the Constitution that lists the reasons for giving the government certain powers is a limit for the uses of those powers rather than a grant of powers themselves? That “to promote the general welfare”, for example, is a valid reason for using the powers granted to the government but that “promoting the general welfare” isn’t a general license for the government to do whatever it wants as long as it fits the definition? Because I think that ship sailed a long time ago, at least as far back as Wickard v Filburn.

  13. Don’t pin this on the CDC. This is the Trump administration wanting a power grab for themselves. They are just using the CDC. This was originated out of the White House.

    1. I’m sorry you got a bunch of extra chromosomes but you hang in there!

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  15. Yes, Trumps leaning towards lefty-doom policy lately is disturbing.

  16. Where does the Constitution say that it doesn’t apply under certain circumstances?

    1. In the emanations and penumbras section, which, besides saying the supreme court gets to make up rights, out of whole cloth, like killing the unborn, and homosexuals pretending to be married, has the footnote that says: “None of this applies if someone gets sick.

  17. No argument in their court filing that Congress can only delegate powers *it has*, and it *doesn’t have a general police power* it can delegate to enforce broad public health initiatives?

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