The Volokh Conspiracy

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Executive Power

Biden's Revival of Trump's Eviction Moratorium is at Odds with His Position on the Legality of a National Mask Mandate

Biden correctly recognizes he doesn't have the authority to impose a general national mask mandate. The same reasoning shows the nationwide eviction ban is also illegal.


In my previous post, I praised Biden's first-day executive action repealing Trump's travel bans. I am, to put it mildly, much less enthusiastic about his plan to revive the Trump administration's nationwide moratorium on evictions, which the White House is also expected to issue today. The Trump policy—issued by the Center for Disease Control—expired on December 31(though Congress extended it by legislation for 1 month in its most recent stimulus bill). Biden intends to revive it and extend it until at least March 31.

For reasons described at length in my September post on the Trump moratorium, this policy is harmful, illegal, and likely to set a dangerous precedent—since the reasoning justifying it would also allow the CDC and the White House to issue orders shutting down almost any kind of economic or social activity—without even having to provide any evidence showing that doing so would limit the spread of a deadly disease. The fact that it will now be done under Biden's aegis rather than Trump's doesn't make it any better. Whether the lipstick on the pig is Republican red or Democratic blue, it is still the same porker underneath.

I would add that Biden's attempt to revive the moratorium is at odds with his own belated but welcome recognition that he does not have the authority to issue a nationwide mask mandate. Biden instead opted for the much more limited approach of requiring masks on federal property and in interstate transportation (which largely mirrors current practice).

As I pointed out to the Washington Examiner back in September, the same reasoning that is used to justify the eviction moratorium as a legally authorized public health measure, can also be used to defend a national mask mandate. Indeed, the latter is probably easier to defend, because the connection to curbing the spread of disease is much stronger and clearer.

My own view is that mask mandates may well be justified in some settings (though survey data indicates that the overwhelmingly majority of Americans already routinely wear masks, even in the absence of rigorously enforced mandates). On the other hand, I am far more skeptical about the supposed need for eviction moratoria. But neither can be imposed merely at the whim of the executive branch, and either would set a dangerous precedent for future administrations. Democrats who are comfortable with having Biden wield such vast discretionary power should consider whether they are willing to trust the next Republican president with the same sweeping authority.

Biden is far from the first president to take inconsistent positions on closely related issues. It could be that he and his advisers simply haven't considered the potential contradiction between their positions on these two issues.

A more cynical possible explanation is that Biden genuinely doesn't want to impose a nationwide mask mandate, because he knows enforcing it would be virtually impossible, and might lead to dangerous confrontations between recalcitrant citizens and law enforcement officers, at a time when tensions between the public and police are already high. But he may not want to simply say he's against such an order on principle, for fear of offending members of his own party who strongly favor the idea. By contrast, Biden may not have any such reservations about the eviction moratorium.

Whatever the motivation for the discrepancy, I hope the administration reconsiders its commitment to the eviction moratorium. If not, as Josh Blackman notes, the various lawsuits against the Trump policy are likely to continue, now aimed at the new administration. I hope the plaintiffs prevail.

NOTE: The plaintiffs in some of the lawsuits against the Trump eviction moratorium are represented by the Pacific Legal Foundation, where my wife works. I myself have played a minor (unpaid) role in advising PLF on this litigation.

UPDATE: I have made minor additions to this post.