Coronavirus

The CDC vs. the Constitution

The Founders could not have possibly imagined the Commerce Clause covering an eviction moratorium.

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Since last summer, the Centers for Disease Control and Prevention (CDC) have used an obscure federal regulation to impose a nationwide moratorium on a huge chunk of residential evictions. This is constitutionally dubious, to say the least. But the CDC just extended it through June.

The moratorium's proponents argue that federal authority over interstate commerce permits this move. But the Interstate Commerce Clause isn't a plenary power over all areas of life simply because everything, at a certain point, can be linked to commercial activity. The Tenth Amendment makes clear that all powers not expressly delegated to the federal government are left to the states. Still, the Commerce Clause has been used to justify a myriad of regulations that involve no commerce "among the several states," and in some cases no "commerce" at all. Notable examples include prohibiting cannabis grown in your backyard for personal medical use, or stopping the control of a rodent population that has no commercial value and lives only in southwest Utah.

Courts since the 1930s have often validated federal overreach under cover of the Commerce Clause. But in United States v. Lopez (1995), the U.S. Supreme Court held that gun-free school zones had nothing to do with interstate commerce. The Clause, it cautioned, does not invite a court to "pile inference upon inference in a manner that would…convert congressional authority…to a general police power of the sort retained by the states."

At the time, Lopez seemed to be a game-changer. But officials have found creative new ways to keep an impossibly broad Commerce Clause alive, and the Court has sometimes approved such schemes, as in the medical marijuana case Raich v. Gonzalez (2005). But in NFIB v. Sebelius (2012), even as Chief Justice John Roberts saved Obamacare's individual mandate, he also joined a majority of justices in holding that the Commerce Clause is not so broad as to justify forcing people to engage in a commercial activity.

The CDC eviction moratorium is especially egregious because it's not even a statute; it's an edict. Moreover, the regulation the CDC is relying on could be interpreted to permit any measures the agency "deem[s] reasonably necessary" to prevent the spread of communicable disease if it believes local responses "are insufficient to prevent the spread." Taken to an extreme, that provision could justify the regulation of every aspect of life, all to "prevent the spread" of the common cold. Although the regulation's language likely limits the agency to actions like those the rule actually lists—"inspection, fumigation, disinfection"—if it is extended to an eviction moratorium then there is no logical limit to what it could cover, essentially enabling the CDC to rule by decree. The Framers could not possibly have intended this result.

As Lopez teaches, it would take more than a few inferences to conclude that the landlord-tenant relationship is anything other than local (not interstate) activity. Those who disagree ought to heed District Judge J. Campbell Barker, who in a recent ruling against the CDC remarked that the "federal government cannot say that it has ever before invoked its power over interstate commerce to impose a residential eviction moratorium."

Meanwhile, a majority of states imposed eviction moratoriums of some kind during the pandemic, though some have lapsed. Whether or not they are wise policy, they certainly do a far better job of accounting for local economic conditions than the CDC's one-size-fits-all approach could ever do. Constitutional defects aside, the CDC rule simply isn't necessary.

NEXT: Scandinavia Understands the Value of Low Corporate Taxes. Why Doesn't Joe Biden?

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  1. Constitution? What’s that?

    1. It’s a moldy old document written by oppressive white slave holding males. It has guided this up until now very successful country that was once the envy of the world, but now has outlived its usefulness.

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    2. It was an ancient document that was written in a now dead language called English. Present day Americans rely on courts and bureaucrats to properly translate into 21st century Newspeak.

    3. It was the definition of the USA until the Democratic Nazi’s (def; National Socialist) started taking over the USA and currently working on turning it into Detroit.

      Democratic Nazi fundamentals – Why let *just* Detroit fail; Turn the whole USA into the same failure. Why let *just* person X fail; Turn every x,y,z person into the same failure. End-Goal; Point Gov-Guns at people until everyone is at the Least Common Denominator.

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  2. But the Interstate Commerce Clause isn’t a plenary power over all areas of life simply because everything, at a certain point, can be linked to commercial activity.

    That ship sailed right off the edge of the Earth damn near a hundred years ago.

    1. And I think it’s the closest Reason has ever gotten to admitting that globalism *might* produce a single, all-encompassing global government.

      1. Speaking of which, while I’m familiar with Agenda 21, I hadn’t heard of Agenda 2030. Which is described as Agenda 21 on steroids (considering that much of Agenda 21 appears to have died in the crib, maybe some steroids are in order):

        The 17 SDGs [Sustainable Development Goals] are: (1) No Poverty, (2) Zero Hunger, (3) Good Health and Well-being, (4) Quality Education, (5) Gender Equality, (6) Clean Water and Sanitation, (7) Affordable and Clean Energy, (8) Decent Work and Economic Growth, (9) Industry, Innovation and Infrastructure, (10) Reducing Inequality, (11) Sustainable Cities and Communities, (12) Responsible Consumption and Production, (13) Climate Action, (14) Life Below Water, (15) Life On Land, (16) Peace, Justice, and Strong Institutions, (17) Partnerships for the Goals.

        JFC what a mess! How is 10 not inclusive of 5? How are 6, 7, 11, 12, 13, 14, and 15 all separate goals? Why is whats the difference between No Poverty and Zero Hunger, are there wealthy people who can’t afford food and impoverished people who have more than enough food? I can understand how ‘Sustainable Cities and Communities’ and ‘Zero Hunger’ are goals but how does one achieve ‘Industry, Innovation and Infrastructure’?

        This sounds like an unedited list of things that first graders brainstormed when asked what they think world leaders should be doing to make the world a better place. Kids, Joe Biden has trouble remembering the three things he’s going to do about voting reform, you’re going to have to prioritize and simplify.

        1. This sounds like an unedited list of things that first graders brainstormed —

          Of which they are being taught to “brainstorm” this way. Go back another year before *indoctrination* started and you’d get entirely different answers.

          Commie-Education Indoctrination,
          Dear Children, Everyone is poor and starving and sick, Only the proper ‘education’ can fix it, Anyone with a vagina is oppressed, Dirty work equals dirty water, No-one deserves more than ten cents for creation and innovation, No-one deserves two color TV’s and most IMPORTANTLY only GOV can fix ALL the above.

          One Red-Pill later (If ever taken) —
          No – All my neighbors aren’t poor, starving and sick actually very few are and the ‘reason’ is generally as clear as day; they *choose* to be poor.
          No – Women are *entitled* not “oppressed” and those are opposite.
          Anything is worth as much as someone else will pay for it.
          After visiting those with two-color TV’s it becomes apparent they are very talented and a great asset for everyone so yes they actually deserve two TV’s.
          The only thing Gov-Guns are needed for is ‘justice’ the rest is just criminal. And just like all the other criminals who are poor and live in the roots of blaming everyone else for their own mistakes; wants to enslave the world so they can be careless and lazy.

    2. Not really. The commerce clause still means pretty much the same thing it did since it was first interpreted in Gibbons v Ogden (1824) The expansion always comes from pairing it with the necessary and proper clause as though Commerce & necessary & proper clauses are one inseparable thing. Decoupling 2 separate clauses is a more feasible solution than tryin to roll back an expansive reading of the commerce clause

      1. The real problem with that modern courts interpret “necessary and proper” as meaning, “convenient, and eh, whatever”. If the government claims an action advances an enumerated power, or even just the general welfare, and it doesn’t grossly violate some enumerated or invented right, (With the degree of grossness required varying with how much the courts like the right.) that’s pretty much the end of their analysis.

        That the action is just pretextually related to any legitimate power, and is actually an effort to exercise a power Congress wasn’t granted, just isn’t viewed as important.

      2. Separating the two clauses will be more effective than trying to roll back an expansive reading of the first clause. Got it.

        Separate clauses are just an imaginary social construct, man!

  3. This is why everyone should have voted for Trump. He never would have allowed the communist at the CDC to get away with this.

    All jokes aside. I hope to god the SCOTUS gets to this now and not 3 years from now; and it isn’t lost on me that the only reason I’ve any faith in SCOTUS making the right ruling is because Gorsuch, Kavanaugh, and Barret were able to get on the court – thank Trump for that. Still Trump should be held personally responsible for repaying all lost revenue for anyone effected by this policy.

    1. I wish this was true, but the CDC expropriation of rental properties and mortgaged homes through these eviction/foreclosure moratoriums started under Trump. There’s plenty I don’t like about Trump, but I was gonna vote for him as an “anybody but a democrat” vote until this shit started under his watch. After considering I didn’t live in a swing state anyway, I voted Jorgensen instead.

      1. This single paragraph makes you a more legitimate, inciteful, and level-headed libertarian than at least half the Reason editors. I still think your vote for Jorgensen was ill decided, but your reasoning against Trump is objectively sound and your overall decision vastly superior to “My vote for Jorgensen (should I choose to cast one) doesn’t count but I’d vote Biden if it did.”

        1. Anybody who voted Biden is either a complete uninformed idiot or pro tyranny. After the government has gone completely off the rails totalitarian now for a solid year (8 months at the time of the election), how could anybody vote for a party that openly and proudly says they greatly wanna increase the government’s power and promises to be the most progressive (aka statist) administration in American history. Democrats now are truly anti-American (as the founding fathers envisioned it) and are pro tyranny communists. Moderates like JFK or even Bill Clinton are now extinct.

  4. Whether or not they are wise policy, [a majority of states] certainly do a far better job of accounting for local economic conditions

    It is nifty as fuck that an ostensibly libertarian voice considers states’ abuse of property rights less egregious than the federal government’s. A principled stance would recognize neither level of government has the moral authority to interfere in the landlord-tenant relationship.

    1. Yawn. Isn’t there a message board at the Mises Institute you can squawk at?

      1. Oh I see lol. This comment is part of the character constructed for your handle, right?

    2. Well, it’s less egregious in that the law actually allows states to do that particular stupid, self-destructive thing. The feds doing it is just as stupid and self-destructive but it’s also unconstitutional when they do it. So yes, that makes it worse that they think they can get away with flouting the few constraints we have against them.

    3. In my state they were pretty reserved about the lockdowns and mandates. The local city and county governments in my immediate area, not so much. But much of the state remained relatively free compared to say, coastal states or Michigan.

  5. This is a primary reason I’ve been looking into the Convention of States; this is premised on Article V whereby a common proposal of 34 State legislatures can petition for an Article V convention [limited in scope, as compared to a general constitutional convention, or Congress, that could propose anything and potentially change anything] that would consider amendments, that if proposed would require ratification by 38 States.

    My first concern is that this could be naive; that it could be preemt ed by particular factions, or that is could “run away” and possibly upend the entire Constitution [which is now about 3000 pages beyond its original form], to name a couple. I don’t think so, if it would indeed by limited in scope, and require ratification by 38 States [as an ultimate safeguard]; but even given these risks, is it not a bigger risk to jus watch the federal government continue to expand its regulatory reach, indulge in fiscal recklessness, and increasingly disregard our most fundamental rights? One thing we can be certain of is that Washington sure as hell isn’t going to restrain itself, in any regard.

    1. My reasoning is similar: I don’t expect a Convention would actually produce much I’d like better than the current written Constitution, but then, the current written Constitution isn’t being followed anyway.

      We might get some fixes, that would be politically difficult for the feds to just ignore.

  6. The constitution started to die with the implimentation of income tax law, its demise was speed up by fdr with stating that growing your own feed corn was interstate commerce. With nobody caring why does anyobe think we have a constitution anymore

  7. Constitution? If you read the constitution, the entire CDC is illegal even for the purpose of disease control, let alone expropriation of private property. There is nothing in the constitution about infectious disease or even public health so by the 10th amendment, it’s not an enumerated power of the federal government and thus illegal. The same goes for 90% of federal government functions. The interstate commerce clause and the general welfare clause are the horribly misinterpreted parts of the constitution that have become the blank check of tyranny.

    1. Clearly that was an oversight. How could the Founding Fathers possibly have foreseen the possibility of deadly epidemics?

      1. Founding Fathers possibly have foreseen the possibility of deadly epidemics” except for where they used them on natives

      2. I’ll assume that’s satire. In case it isn’t, when George Washington had to fight a smallpox epidemic during the Revolutionary war, it was illegal in the colonies to use variolation – an early form of vaccination. Washington chose to ignore the law and had all new recruits variolated/vaccinated. It worked and congress removed the ban on the procedure. Though communicable diseases were common, and isolation from sick people was known to reduce the spread, the founders chose not to grant the Federal government with any extraordinary powers to address epidemics.

    2. Everyone knows that the courts have ruled that the constitution is unconstitutional.

    3. The CDC as a research and advisory arm is defensible under the “general welfare” clause of Section 8. Public health is pretty uncontroversially part of the general welfare. That doesn’t justify unlimited police powers – or even the powers asserted by the CDC above. And I certainly don’t disagree with your broader point that the commerce clause and general welfare clause have been stretched beyond any realistic interpretation. But it goes to far to say that there is no basis to support the idea of a CDC.

      It also goes much too far to say that there is no basis for expropriation of private property. On the contrary, the Takings Clause explicitly allows it. The only constraint is that the government is supposed to pay you for what they expropriate. (That’s what makes “expropriation” different from simple “theft”.)

      1. The is NO “general welfare” clause — This is lefty indoctrination 101. It’s just lefty deceitful and manipulated cherry-picking words out of context and making a painting a wildly UN-associated narrative.

        The ACTUAL “cherry-picked” words comes from the taxing clause.

        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; but all Duties, Imposts and Excises shall be uniform throughout the United States;

        What is blatantly obvious is ‘United States’ in the U.S. Constitution is but the *name* of the federal government the Constitution is written for. This is just common-sense 101 and a little dig in history will prove it’s correct. It’s really sickening how lefty Nazi’s have indoctrinated so many people about cherry-picked words out of context and deceitful manipulation about the Constitution.

        Now wash your brain of the lefty-deception; What it *really* says is the federal government’s congress has the power to tax to keep themselves from going bankrupt which has ZERO to do with other enumerated powers.

        1. “What is blatantly obvious is ‘United States’ in the U.S. Constitution is but the *name* of the federal government the Constitution is written for.”

          Your own quote above seems to disprove that:
          “but all Duties, Imposts and Excises shall be uniform throughout the United States;”

          Clearly “United States” here refers to the entire country, unless you think it means duties, imposts, and excises only have to be uniform on the federal government…

          1. Context Matters —

            Clearly the ‘United States’ is a Constitutional Union of States
            governed by what we refer to today as the federal government.

            ” ‘general Welfare’ of the Union of States” would be equivalent to the federal government because that’s what the union IS.
            ” uniform throughout the Union of States” would be every state of the union because it’s “throughout” the union.

        2. It’s actually more of a restriction, if you read it together with, “but all Duties, Imposts, and Exicises shall be uniform throughout the United States;”

          It means that the enumerated powers have to be exercised for the common defense, and the general welfare; The central government isn’t supposed to be exercising them for merely local benefit.

      2. What TJJ2000 said about the supposed ‘general welfare’ clause – it’s not an enumerated power, it’s a justification for the enumerated powers. You can’t pull powers out of it, because the founders already did that – if it wasn’t enumerated, then tough.

        But further, public health policy is part of the police power, which the federal government doesn’t have. Public health policy is properly reserved for that level of government which does have police power – the states.

  8. The Framers could not possibly have intended this result.

    “You’re not a Framer, so how could you possibly know this?”

    “You’re not me, so how could you possibly know whether I know this?”

    1. The Framers would have called up the militia a year ago.

      1. The last year or so may be the worst unconstitutional government overreach in peacetime ever, but it certainly wasn’t the first. The framers would have likely called up the militia a century ago if not earlier.

  9. Yes the government you helped choose is not your friend and often your enemy.

  10. Is this a way for Millennials to keep from being kicked out of their parents’ houses?

    1. Think no private property.

      I don’t watch a lot of TV anymore, so don’t see many commercials. I was on HULU and wasn’t paying too close attention, but are car commercials de-emphasizing car financing options and promoting leasing? It used to be both, but I thought the last few I heard dropped the buy option and only advertised the lease.

      Like phones being leased and not outright owned.

      Are we aware we are already serfs? We don’t own our houses, we have no rights over our property, don’t own our cars, or our phones.

      1. I believe according to the Persian cat-stroking luminaries at the World Economic Forum, leasing is the future. For everything.

        1. More like subscription services where you occasionally pay a boatload out of pocket for upgrades.

          Try to keep up.

      2. They ran the prices up so high (with the help of several federal “safety” mandates) that only leasing is affordable. Plus it assures their cash flow remains nice and predictably consistent.

  11. Everyone knows that the courts have ruled that the constitution is unconstitutional.

    1. Basically true. That’s why I kinda roll my eyes when people start talking about what the constitution really means, or what/who is really violating it. It doesn’t matter. The courts have made their decisions, and that is that. You can scream about the IRS being unconstitutional, and you might even be right –I’m not a constitutional law expert– but it doesn’t matter a lick.

  12. CDC to landlords: “You didn’t build that!”

  13. that the landlord-tenant relationship is anything other than local (not interstate) activity

    I’ll do it in one – the provision of housing affects the interstate market in housing supplies. The built residence you are renting is another residence construction companies and their suppliers – their *interstate* suppliers* – are thereby effected by you not buying from them.

    1. As long as the government can demonstrate that one brick originated in clay from another state, one 2×4 from a tree in another state, and one nail from iron/steel in another state, your entire house is the product of interstate commerce. And don’t even get me started on the electrician having bought a pack of gum while on vacation in Canada with his family when he 8, you’re lucky we’re not getting the State Dept involved!

      1. Of course, the clause doesn’t give Congress authority over things that are “products of” interstate commerce. Just the commerce itself.

  14. Ok so you can’t kick out tenants, but is there anything stopping a landlord from giving you “roommates” comprised of the landlords friends and or family, who basically goldilocks property until the original tenants move out?

    1. I image that part of the rental agreement would still be enforced.

      1. All of the contract is still enforceable on the landlord; so we have the crazy situation with tenants not paying in over a year, an eviction approved by a judge but not enforceable by the sheriffs and then the boiler breaks in the property and we have to replace it for the tenant or face punishment from the city.

        1. It helps if you start by feeding the tenants into the boiler right after you fix it.

  15. https://twitter.com/TaraLaRosa/status/1377769349260439557?s=19

    “If everything is reopened, … how are we going to incentivize people to actually get the vaccine? The CDC and the Biden administration needs to come out a lot bolder and say if you’re vaccinated you can do all these things, here are all these freedoms that you can have.”

  16. I’m surprised no one seems to be pointing to the contracts clause as a solution. The difference between this moratorium and non-commerce commerce cases (Wickard, Raich, Sebelius) is that none of those cases could be said to be the federal government impairing the obligation of contracts. Is there some flaw in that argument that I am just not seeing?

    1. Yes, you neglected to take into account the “Fuck You, That’s Why” clause.
      🙂

  17. Government: the things we do to fuck each other over, under the cover of imaginary legality.

    1. +1000000; Thoughtfully very true today but rarely stated so bluntly.

  18. And to think the original purpose of the commerce clause was to prevent State’s from having “tariff” trade-wars and settle disputes between State’s at their borders.

    Now the biggest dispute is between Federal over-reach and the State’s. They no longer even pretend to settle disputes ‘amongst’ the States.

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