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.

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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.

 

 

 

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  1. Biden voter has second thoughts already. Sad.

    1. This is the inevitable consequence of political ignorance. Low-information voters don’t have the ability to make informed choices so they are perpetually confused and disappointed by the actions of the people they elect.

  2. First, I strongly disagree with the eviction moratorium as a matter of policy. It’s stupid and counterproductive in the way its implemented, and because it just tolls (instead of pays the landlords) it will cause a waive of evictions when lifted AND cause people that depend on receiving rent to suffer.

    It was wrong for Trump to put in place, and it is wrong for Biden to revive it. As a matter of federalism, it is better for individual states to have “eviction moratoriums” (essentially, ordering their own courts to halt those procedures) that are tailored to their own needs.

    But I don’t think the difference here is due to any machinations regarding the differences in legal authority. I think that Biden probably wants to do as much as possible (both from a substantive and from a PR standpoint) to deal with the pandemic, and that this didn’t get the thorough vetting that the “mask mandate” did; moreover, it might have been lumped in with prior ideas such as the ones predicated on government housing.

    Unfortunately, we seem to exist now in governance by executive order; it is my profound wish that after we roll back a number of the prior administration’s efforts, we can focus on going back to the whole, “Passing Laws” system, which, while quaint, seemed to work for a very long time.

    1. Unfortunately, we seem to exist now in governance by executive order; it is my profound wish that after we roll back a number of the prior administration’s efforts, we can focus on going back to the whole, “Passing Laws” system

      Unless partisan polarization reverses, I suspect the only way we get back to that system is by junking the Constitution and replacing it with a parliamentary system. Which we might do someday, as it is is a better system.

      1. Or go back to federalism. As long as you have winner take all rule over a vast nation, the slow back and forth tug of war will just continue and all of the structural problems will just get worse.

  3. Whatever the legality of an eviction moratorium, I think it’s a poor way to protect tenants who are hurt by the pandemic.

    If we want to do that it should be done by rent subsidies, so the cost is borne by the taxpayers broadly, rather than by landlords.

    (Full disclosure – I do not own rental property.

    And no, Bob, no second thoughts here. Just sheer delight to see that asshole Trump out of office.

    1. New ass, same as the old one.

        1. bernard,
          Bob is referring to himself, I think. (And he’s quite correct, IMO.)

    2. Rent subsidies….you mean like….section 8?

      Whatever could go wrong?

      1. That’s why Democrats are big on “source of income” laws for tenants. They know that Section 8 is usually used by criminals, single mothers, and other parasites, which of course is the Democrat Party base.

        1. “Single mothers = parasites.” May I suggest that for your favorite candidates’ bumper sticker in 2022? At least it’s completely on-brand.

          1. Again, I don’t want to win elections, because it’s impossible without appealing to the parasites. I’d rather have a reset, with war if necessary, that removes the parasites’ right to vote, and for some of the parasites, their life.

  4. In addition to the legal issues, as economic policy an eviction moratorium will go down as one of the most destructive policies ever devised, one for whom there are no benefits, just economic harm.

    The landlords of course are losers, as the mounting debt of unpaid rent will never be recovered and then they will have the expense of eviction and repair of destruction for many units.

    But for the tenants the results are equally bad. Yes they will have been able to stay in their units for a short term, but they will have run up monumnental debt, ruined their credit rating and ultimately be kicked out, leaving many of them homeless. They are building up a debt they can never repay, whereas had they just been given some relief on the rent so that they could continue paying, or government help to pay rent such as temporary Section 8 subsidies they might have made it.

    This is what happens when emotions over-rule intelligence.

  5. What next? I expect a court challenge to every one of Biden’s orders. Forum shopping will be the norm. National injunctions will be the norm.

    Turnabout is fair play.

    To avoid this, the Dems should legislate that national injunctions from district courts are always invalid.

    1. Turnabout might be fair play, but I’m not predicting fair play. Seems you aren’t either, given that last remark.

  6. An elected democrat acting solely on what he perceives as what he can get away with, and ignoring that calligraphy sampler from a bunch of old white guys.
    I am shocked, shocked.

    1. Did you say the same when it was Trumps policy?

      Seeing some flip flops from the usuals around here already.

      1. “Seeing some flip flops from the usuals around here already.”

        Orin is overdue on his quadrennial ‘time for all you D’s and R’s to switch positions’ post.

        It is always stunning how mentally agile people are about switching. My poor brain just isn’t agile enough to make the switch.

        1. I did notice Loki and Bernard being consistent. And I also agree with them. A moratorium without compensation is monumentally stupid.

          1. I’m just glad that I sold my rental property in the summer

            1. I’m glad I didn’t. My property went up 20% in the past 7 months. Trump might be evil, amoral, and a worthless sack of shit. But he was good for my pocketbook. (I’m upper-middle class, I guess. Certain not rich. He’s been even better for the obscenely wealthy.).

              But if you’re the one I bought property from last summer…thanks for the great deal and all that extra money.

              1. I’m curious: Did you base that off actual economic statistics? I mean, it’s very easy to say, “He’s been even better for the obscenely wealthy.”, but can you back that up with hard numbers?

  7. I’m not sure about the separation of powers argument (executive action absent explicit legislation), but for the federalism argument, at first blush it strikes me that an eviction moratorium falls within the federal government’s power to regulate economic activity that substantially affects interstate commerce. On the other hand, a mask mandate might not because it doesn’t regulate economic activity.

    1. Masks travel in interstate commerce, to be sure.
      Even with democrats in control, masks aren’t free. (yet)

    2. “at first blush it strikes me that an eviction moratorium falls within the federal government’s power to regulate economic activity that substantially affects interstate commerce.”

      If only the Constitution had granted such a power, rather than merely the power to regulate interstate commerce itself.

      1. “Congress shall have power […] to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.”

        1. I guess you learned the weasel-way to argue that point in law school. Almost any action can be and has been swept into the regulation of interstate commerce in that way.

          1. No. For example, a mask mandate couldn’t under Lopez because wearing masks isn’t economic activity. And even if it were, NFIB precludes requiring people to engage in economic activity who are not already engaging in economic activity.

            1. So expansive as to make any action legal even if the action constitute a 5A taking

            2. You realize that Lopez was basically a ‘magic words’ ruling? Congress had neglected to include the usual ‘impact on interstate commerce’ boilerplate.

              It was shortly reenacted with the boilerplate, but we don’t know what the courts would do, because they’ve been VERY careful about avoiding the creation of any good test cases.

              1. Brett, you have Lopez quite wrong. A federal nexus is not made by magic words.

                1. I think Brett is correct in that a mask mandate that only applies to masks that have moved in otherwise affected interstate commerce will survive a facial challenge based on Lopez. And he is also correct we don’t know what would happen in an as-applied challenge. However, such a mandate would still fail under NFIB.

  8. Consistency from a Democrat?

    What are you smoking and where can I get some?

  9. I think the administration’s distinction would be that eviction involves economic activity (execution of an economic contract) while simply wearing a mask, without an additional federal nexis, does not.

    Given the expansive view of the reach of the commerce power in cases like Raich v. Ashcroft, it’s an at least arguable distinction.

    What exactly is your objection? Is it that evictions are beyond the reach of the federal commerce power? Is it that a statute allowing the President cannot impose such things by executive order, at discretion, unconstitutionally delegates the legislative power? Your argument is constitutional, so you don’t seem to be arguing the President is exceeding his statutory authority; that would be a statutory argument.

    1. Or is it your position that the President has no statutory authority at all? The claimed statutory authority is 42 USC 264, “Regulations to control communicable diseases.” It authorizes the Surgeon General to make “such regulations as in his judgment are necessary” to prevent the spread of communicable diseases, very expansive language.

      1. So expansive as to make any action legal even if the action constitute a 5A taking

        1. You keep saying that, but you realize that 5th amendment takings aren’t unconstitutional, right? They just have to be compensated.

          1. It seemed to that Professor Somin was arguing this was something that President Biden lacked the Constitutional power to do entirely, not that it can be done but constitutes a 5th Amendment taking requiring just compensation to the landlord.

            But I don’t really understand his position.

  10. The eviction moratorium, coupled with the enhanced unemployment, is basically just a way of screwing landlords and allowing deadbeats to splurge on flat screen TVs.

  11. Another comment opposing the eviction moratorium as policy. But supporting a rent subsidy to prevent evictions.

    A national mask mandate would arguably fall within recognized emergency powers, and/or existing statutes. Biden is excusing himself from the political stress of imposing one, but doing it in a way—by publicly suggesting it isn’t a legitimate federal purpose—which is unwise.

    Vaccination may be a better method now for Covid19. It may prove all that is necessary now, or it may not. Vaccination almost certainly will not be an adequate substitute for masks during incipient stages of the next novel respiratory pandemic.

    One lesson Covid19 experience has reinforced is that quick early response to a novel pandemic has potential to be an enormously powerful lever. It can at once limit exponential increase, proportionately reduce fatalities, and ease economic stress.

    The nation’s Covid19 experience will not be complete until it includes passage of a law explicitly to enable and equip the federal government to deliver such a response nationwide. When the next pandemic strikes, there needs to be a sufficient N95 stockpile to meet early national needs, and sufficient federally managed capacity to sustain mask supplies until vaccination takes over. Whatever laws are necessary to create those capacities should be passed immediately.

    Later, when political pressures from this pandemic have eased, will come the time for passage of a federal law to enforce compliance with mask use. Everyone should know in advance of the next pandemic that that power is available, and that uniform national mask enforcement is to be expected.

    The nation’s Covid19 experience has been horrible, but far from the worst case imaginable. Mortality rates next time could be far higher, and without any saving demographic variance. That is the threat the nation must be prepared to defend against.

  12. “Vaccination almost certainly will not be an adequate substitute for masks during incipient stages of the next novel respiratory pandemic.”

    Technically, they had the RNA vaccine designed within a few days, all the wait has been proving to regulatory agencies that RNA vaccines, (Which are experimental.) are safe.

    Unless the Biden administration deliberately unlearns all the lessons this pandemic taught us about the human costs of medical regulations, (Sadly, very plausible.) the next time a pandemic comes along we could have a vaccine within days.

    1. Do you have a source that the wait had to do with the novel vaccine type generally?

      I thought most of the wait comes from safety/efficacy protocols that are required for each vaccine regardless of the way it was generated.

    2. Brett, even with an exceptionally contagious and exceptionally deadly virus, tests for vaccine efficacy will go more slowly in the earliest stages of an outbreak. You get efficacy results back quickly when there is a lot of virus around. When cases are still rare, it will take longer to accumulate much statistically significant difference between test cohorts.

      Also, the power of masks to do good is greatest during the very first few weeks of population exposure. That is when the leverage which comes from using masks to lower the exponent is greatest.

  13. It is pollyannic to expect consistency in politicians or governmental policy.

  14. I wanted to expand on my earlier post in a specific area. This whole “flip flopping” comment here-

    “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.”

    They are not inconsistent positions. Given the inevitability of some people’s response, I will reiterate that this is a stupid policy- it was stupid when Trump did it, and it is stupid now.

    That said, Biden wants to do everything possible, as quickly as possible, w/r/t the pandemic. Whether you think he is doing it for substantive reasons, PR reasons, or both, we can all agree on that, right?

    Which means that he is going to be doing Executive Orders (in addition to pushing for legislation). Again, EOs are a terrible way to govern. But let’s leave that aside for now.

    Biden has two primary ways to do things- he can either issue new orders (such as the mask mandate), or can re-issue Trump-era orders.

    When he issues a new, Biden order, he needs to ensure that everything is correct in order to avoid the inevitable 300 posts from people like Josh Blackman (“Biden January: How Seth Tillman and I uncovered that the Third Amendment Means that Biden Isn’t Allowed to Live in the White House and Issue Orders, Unless Meanie Roberts Lets Him!”). It’s early, and I’d prefer not to govern by EO, but I will at least give Biden partial credit for not issuing an unconstitutional mask mandate. He kept it to what he was told he could do.

    His second option is to just re-issue Trump Orders related to the Coronovirus. I’m assuming that these aren’t going to closely vetted, simply because …. they were already issued, and the GOP didn’t put up a fight then. From the standpoint of political expediency, don’t look a gifthorse in the mouth. Your party wants it, the GOP isn’t going to be using political capital to oppose a prior Trump order, and you don’t have to get into the weeds analyzing it because it’s not a new policy, so it should have gone through the legal vetting previously.

    Again, it doesn’t make it good policy, because it isn’t. But re-issuing an older order is not the same as issuing a new order, IMO.

    1. Loki, “unconstitutional mask mandate,” because no federal mask mandate could be constitutional? Or because administrative i-dotting and t-crossing isn’t yet complete, and that affects what’s constitutional to do now?

      1. Because a “federal mask mandate” would necessarily be limited; federal property, federal land, Washington DC, or interstate travel.

        I think it would be exceptionally difficult, constitutionally, for there to be a nationwide, general-purpose, mask mandate. I’m not saying impossible, but I think that the limited-purpose one is on solid footing, and it is better to work with the states for anything further.

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