Eviction Moratorium

Supreme Court Says Private Property Rights and Separation of Powers Do Still Exist in U.S.

Plus: Biden won't budge on Afghanistan, bad news for psychedelics measure in California, and more...

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rollcallpix118800 | Bill Clark/CQ Roll Call/Newscom
(Bill Clark/CQ Roll Call/Newscom)

The U.S. Supreme Court has struck down the Biden administration's eviction moratorium extension. In a 6–3 ruling, the Court held that the Centers for Disease Control and Prevention (CDC) doesn't have the authority "to promulgate and extend the eviction moratorium."

The CDC claimed the Public Health Service Act gave them such authority. But that law specifically mentions measures like "inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles"—things that "directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself," the Court notes, continuing:

The CDC's moratorium, on the other hand, relates to interstate infection far more indirectly: If evictions occur, some subset of tenants might move from one State to another, and some subset of that group might do so while infected with COVID–19… This downstream connection between eviction and the interstate spread of disease is markedly different from the direct targeting of disease that characterizes the measures identified in the statute. Reading both sentences together, rather than the first in isolation, it is a stretch to maintain that §361(a) gives the CDC the authority to impose this eviction moratorium.

The ruling "is technically a procedural one, not a final decision on the merits of the case," explains Volokh Conspiracy blogger and George Mason University professor Ilya Somin. But "it nonetheless makes clear that a majority of justices believe the new version of the moratorium is illegal. In addition, the Supreme Court's reinstatement of the district court ruling against the moratorium may well have nationwide consequences, not limited to the specific parties in this case."

"Even if tonight's decision does not immediately put an end to the moratorium, it does create a precedent that lower court judges will likely use to rule against the CDC in all the other cases challenging the moratorium around the country," Somin adds.

In any event, the ruling is an important affirmation that private property rights still exist in this country.

It's also a good stand for the separation of powers. Congress can still pass a law extending the eviction moratorium—it's just unconstitutional for the executive branch to unilaterally make this decision. "We expect Congress to speak clearly when authorizing an agency to exercise powers of 'vast "economic and political significance,"'" the Court's opinion states.

Whether supporters of the moratorium are being disingenuous or just ignorant is hard to gauge, but many have been suggesting that the Supreme Court's ruling is somehow undemocratic. Ha! What's actually undemocratic is letting bureaucrats at the CDC make this decision instead of democratically elected officials.

"The Government's read…would give the CDC a breathtaking amount of authority," the Court points out. "It is hard to see what measures this interpretation would place outside the CDC's reach, and the Government has identified no limit in §361(a) beyond the requirement that the CDC deem a measure 'necessary.'"

"Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable?" the Court asks.

Require manufacturers to provide free computers to enable people to work
from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work? This claim of expansive authority under §361(a) is unprecedented. Since that provision's enactment in 1944, no regulation premised on it has even begun to approach the size or scope of the eviction moratorium. And it is further  amplified by the CDC's decision to impose criminal penalties of up to a $250,000 fine and one year in jail on those who violate the moratorium.

Some critics of the Court's decision may very well wish President Joe Biden's CDC had this kind of power. But it's shortsighted to imagine that only administrations you like will wield extensive and authoritarian new powers once granted.

Notably, much of the rental assistance money that Congress granted to ease the eviction moratorium's burden has not been distributed. "The $46.5 billion rental aid program created to pay rent accrued during the pandemic continues to disburse money at a slow pace," The New York Times reported earlier this week. For instance, New York state had distributed just over 1 percent of its allocated funds.

FREE MINDS

Biden continues to have a spine about Afghanistan. The president—long an avatar of conventional wisdom, whichever way it blows—is actually refusing to give in to the warmongering hordes who insist that yesterday's tragic terrorist attack in Kabul somehow magically makes keeping American troops there wise. Meanwhile, media that largely ignored Afghanistan for years now give a voice to endless schlock about our deeds there, and partisan hacks who praised former President Donald Trump for negotiating with the Taliban and announcing the troop withdrawal from Afghanistan have been leaping at the chance to score opportunistic points against Democrats and/or reestablish their warmongering bona fides.

It was bad since last week, and even worse with the attack in Kabul yesterday by members of the Islamic State of Iraq and the Levant–Khorasan Province. For instance, Sen. Josh Hawley (R–Mo.)—who profusely praised Trump's withdrawal plans, and continued to praise withdrawal as recently as April—is now calling on Biden to resign. A number of other Republicans have done the same.

Certainly, the Biden administration has made mistakes in the way it has handled the withdrawal, particularly when it comes to getting out Americans and Afghan allies. (There are certainly lots of opportunities for the administration to continue to go wrong, too.) But it's nothing more than self-serving claptrap to pretend that there was a way it could have done this that would've left things in Afghanistan humming along perfectly or without any of the upheaval and violence we're now seeing.

These disturbing incidents are a shining indication of the lies at the center of our project in Afghanistan and a symptom of how badly we failed all along, not a reason to senselessly stay the course.

FREE MARKETS

Bad news for psychedelics legalization in California.

QUICK HITS

• On bitcoin's promise in Afghanistan.

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Elizabeth Nolan Brown is a senior editor at Reason.