COVID-19 Edicts Highlight the Importance of Structural Limits on Government Power

The national eviction moratorium and Arizona’s business restrictions were based on dubious assertions of authority.


By the time he took office, President Joe Biden had abandoned his campaign promise to require that all Americans cover their faces in public, admitting that such an order was beyond his authority. But that concession did not stop the Biden administration from imposing a nationwide eviction moratorium with an equally dubious legal basis.

Last week a federal judge in Texas ruled that the Constitution does not give the federal government the power to decree that landlords across the country must house tenants who do not pay their rent. That case, along with a challenge to Arizona Gov. Doug Ducey's pandemic powers that the state Supreme Court will hear next Tuesday, is part of an overdue reexamination of the assumption that politicians can do whatever they deem necessary to fight COVID-19.

The eviction moratorium, which the Centers for Disease Control and Prevention (CDC) originally issued in September, was renewed by Congress in December, then extended again by the Biden administration. It is based on a breathtakingly broad reading of the CDC director's authority to "take such measures" he "deems reasonably necessary" to stop the interstate spread of communicable diseases.

The CDC reasoned that evicted tenants might "become homeless" or "move into close quarters in shared housing," thereby increasing the risk of virus transmission. That rationale suggests the CDC's authority is vast, encompassing any policy that is plausibly related to disease control, including business closures and a national stay-at-home order as well as the face mask requirement that Biden ultimately decided could not be imposed by executive fiat.

Even with congressional approval, Judge J. Campbell Barker of the U.S. District Court for the Eastern District of Texas ruled last week, blocking the enforcement of rent obligations exceeds the federal government's authority to regulate interstate commerce. Barker noted that the blanket ban on evictions, which the government claimed it could impose even in the absence of a public health threat like COVID-19, was historically unprecedented, did not involve interstate commerce, and was not necessary to enforce a broader scheme of economic regulation.

Barker emphasized that the case had no bearing on the constitutionality of state or local eviction regulations. His ruling hinged on the distinction between the federal government, which has no more authority than the Constitution grants, and the states, which retain a broad "police power" that extends much further.

The challenge to Ducey's COVID-19 rules, by contrast, is based on the division of powers between the governor and the legislature. Arizona State University law professor Ilan Wurman, who represents a group of bar owners, argues that Ducey's restrictions, which forced his clients to close their businesses for a total of nearly five months and continue to threaten their livelihoods, amount to unconstitutional legislation by the executive branch.

Ducey's regulations are based on a statute that purports to grant him "all police power" during an emergency that he alone has the authority to declare. As Ducey reads that law, Wurman notes, "the Governor is empowered to do anything that in his mind is necessary to resolve the emergency."

In practice, that has included detailed, ever-shifting codes of conduct for various industries that ordinarily could be regulated only based on specific legislative authority. But the power claimed by Ducey goes even further.

"The Governor could order everyone to stay home for six months," Wurman says. "He can pick and choose what businesses to leave open and what businesses to close. He can tax the rich and redistribute to the poor to help them seek shelter."

Last fall, the Michigan Supreme Court concluded that a similarly broad authority granted by that state's legislature violated the separation of powers. The court emphasized "the sheer magnitude of the authority in dispute" and "its concentration in a single individual."

Pandemic-inspired restrictions have clearly demonstrated the necessity of explicitly protected rights such as religious freedom. But as these cases show, structural limits on government, which tell us who may exercise which powers, are at least as important in protecting liberty from overreaching politicians.

© Copyright 2021 by Creators Syndicate Inc.

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  1. Reason attacks the republican while ignoring all the democrats. Typical.

    1. Biden is a Republican?

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  2. I think it’s great that judges protect our rights. However this is due in part to Trump’s appointment of conservative judges, and we could easily lose this advantage after Biden and Harris reverse course and appoint liberals. They will have no problem endorsing sweeping state powers.

    So what’s the answer? Easy. We just have to fight online in enemy territory not attack our allies here in our safe space or make excuses for cowardice. I fought these restrictions for months but there were simply not enough of us (which is shameful considering how many businesses were shut down). But that’s why we lost, and these ‘wins’ are actually pathetic consolation. Too little too late.

    Anyway the war today is online not in the courts or in the streets or at the capitol.

    1. Maybe if you got off the internet and did some work you wouldn’t have to keep complaining about your losses and blaming everyone else for them.

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    2. You cannot convince people by attacking and seeing people as enemies.

      “If you keep seeing everyone as an enemy, then enemies are all you’re gonna find.”


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  4. Anyway got my first dose yesterday. My only complaint is that they make it too complicated. It was at Walgreens and there is too much rigmarole and paperwork so they cannot process people efficiently.

    1. That is what I found too, I work for a large hospital and was vaccinated on the third day of the rollout. I had to fill out a form online and schedule the day and time then take a picture of it with my phone show that to the first person than we had to stand against the wall 6 feet apart and wait for 20 minutes then when we were called up point to my name on the list then when I sat down with the nurse sign another waiver and fill out a vaccination sheet. Only after that did I get the shot and had to sit in the lobby for 30 minutes to ensure I did not have a reaction. After 40 minutes I realized that no one was telling us to go we were on the honor system so I left. For the second shot had to go through all of this again but this time I just went back to work instead of waiting.

    2. a far better plan would be to simply stay home and NOT get that abomination poked into your arm.

      Safest route yet.

      1. Is it just this vaccine or are you opposed to all of them?

  5. So called “Structural” limits on government power won’t matter if the courts invoke the political question doctrine to avoid enforcing them.

    1. They invoke the clause in the constitution that if an executive declares an emergency the constitution is suspended.

      All of the most prestigious talking heads, even Volokh here at Reason, are adamant that such a clause exists even though you can’t fund it in the constitution. It’s in invisible ink don’t you know?

      And the emergency lasts until the executive alone decides that he/she is good and ready to give the peasants their freedom back which is for the most part never.

      1. some state legislatures have enacted “emergency powers” laws that cede to the Executive head cheeeeeze way too much power… and nearly all if not in fact all restrict the time for that to be active to thirty days. Then the Leg has to stand up and say the emregency continues.
        But NOWHERE does any such law provide for indefinite dictator status for the executive branch. I can think of at least a dozen who have usurped that level of power. Naughty naughty mustn’t do, now.

        And NO state legislature can abdicate their legislative power to any other branch, no matter HOW crazy things get.
        The 14th Article of Ammendment I belive it is, guarantees to ALL CITIZENS a “republican form of government”, that means, by definition, a three branch system of separating the various functions/powers of a government. When the Exec ascends the throne with his crown atop his ugly head pretending he has plenary powers to dictate to all and sundry within his purview, he is either lying or criminal, and since lying is a crime, he’s bothn WHEN will these corrupt godlets be charged with felony perjury for searing their oath of office then refusing to uphold it?

    2. Does any libertarian actually believe you need 18 years of education and 20+ years of experience to be able to suss out the meaning of the words in the constitution?

      The whole system is fucking baloney (or bologna if you prefer)

  6. Turns out this is not the home of the free! It also turns out that Trump and his disciples have been fighting for and complaining about something that doesn’t exist and never has!

    1. Ironically; Trump vs Biden Administrations – Biden is the one “fighting” and “complaining” MORE about the Power-To do something. Your bias is showing.

      1. You are correct, my bias is showing and it has everything to do with the overreach and incompetence of both sides. But hey, at least Biden can take credit for the success of Operation Warp Speed.

  7. This is now a mental illness.

    So landlords just get stiffed. Who then stiff banks. One group that gets 100% pay no matter is government.

    Oh wait they’ll pretend to bail them which of course is just printing monopoly money.

    Kim Jung-il is like “damn you guys are just as good as me at this stuff”

  8. A half dozen Democrat governors (Cuomo, Wolf, Murphy, Raimondo, Lamont, Whitmer) have been imposing totalitarian lockdowns (including many that violated their state’s constitution and/or statutes) during the past 11 months, but chronic TDS sufferer Sullum never wrote any articles criticizing any of them.

    And Sullum still hasn’t written an article criticizing the Pelosi/Schumer/Biden/Harris imposition of martial law in DC, and built a razor wire fence, and stationed thousands of national guardsmen (er guardspersons).

    BTW Biden imposed a mask mandate on all federal property (even outdoors), and on public transportation nationwide. But of course, Biden’s press secretary Jen Psaki never wears a mask at her press conferences (and none of the left wing propagandists who hated Trump, including Sullum, have even asked her why, or pointed out the glaring fact that, she violates Biden’s executive order daily).

    1. you forgot to run your finger down the map along the Pacific Ocea shore.. Inslee, Brown, Nuisance…… each and all are as bad as any of the others.

  9. NY has an old law that says in a declared “State of Emergency” a whole list of things are banned or regulated. One part is about firearms. It states, among other things, that firearms cannot be “transported”. That means that conceal carry becomes illegal. Just moving a legal unloaded gun becomes a crime. I read that the law was passed after the violence in the 60’s and has never been removed.

    50+ years and the courts never corrected the blatant abuse of the constitution. I don’t expect any change after the current debacle.

    Cuomo declared a state wide “State of “Disaster” a year ago. In February 2021 he declared a “State of Emergency” for NYC and surrounding counties, thereby greatly expanding his power and control over downstate.

    These emergency powers need to go

    1. “…In February 2021 he declared a “State of Emergency” for NYC and surrounding counties…”

      I should have added that this was for the Nor’easter.

  10. Thank you for sending me the information about it I learned a lot from it ! I appreciate the detail you went into it I am grateful for the amount of time and effort you put into this helping us. Your insights and summary are beneficial.

  11. All assertions of authority are “dubious” (bullshit) unless you’ve willingly signed a contract that grants authority.

  12. When smoking was legal in bars they had great ventilation to get the smoke out and fresh air in. If that ventilation was still being done a bar would be a fairly safe place.
    The governors that used strict protocols and mandates to close up their states did more harm then good. When they close bars people simply met in homes which is much more dangerous then a bar and the same occurred when closing restaurants.
    The states that treated the people like Americans living in a free society found people made better decisions then what the governments did and faired better.

  13. An “emergency” is a specific incident or condition that “emerges” in a specific point in time and space, such as a flood, wildfire, interstate highway bridge, train wrech, ship sinking, hurricane, earthquake. The “emergency powers” are limited by definition to the specific areab or event. The Gabbling Nuisance cannot issue orders or restrictions that affect San Diego because a plane crashed at the San Francisco airport. To do so violates the guarantee found in the Fourteenth Article of Ammendment that we ALL have the right to a “republican” form of government (little r).

  14. We already have “structural limits on government”. They’re called The Constitution.
    But we let both parties get away with ignoring it. When the federal government was first formed, there were NO political parties, although there certainly were factions. The states created the federal government, and NEVER had any intention of ceding any of their own authority, within their borders, to the federal government.

    That would have worked out, but we now have politicians for the two parties that have greater fealty to their party, than to their state. It’s difficult to even imagine anymore, but congressmen and senators are supposed to represent their STATE, NOT their party. Even the president is elected by the states, and not by the people. That is no mistake. The people elect their state governments, and the state governments elect the president. (State governments used to elect the state’s two senators) The intention was to keep the federal government in a box, under full control of the states.

    Rule by political parties is off the charts unconstitutional. Party loyalists are this country’s biggest problem, not the solution.

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