Nondelegation

The State of the Legal Struggle Over the CDC Eviction Moratorium

Two district court decisions have upheld the moratorium against various challenges, while one has ruled against it. The legal battle may be just beginning.

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As co-blogger Josh Blackman notes, a federal district court ruling recently concluded that the Center for Disease Control nationwide moratorium on evictions is unconstitutional, in Terkel v. CDC (Eastern District of Texas). On the other hand, two earlier district court decisions—Chambless Enterprises v. Redfield (W.D. Louisiana), and  Brown v. Azar (N.D. Georgia)—have upheld the legality of the CDC order. Technically, these rulings addressed the original CDC moratorium enacted in September under the Trump administration, rather than its extension by Biden. But they nonetheless address essentially the same policy, because Biden's version is simply an extension of Trump's.

While the three cases  consider the same CDC order, they actually deal with different types of arguments against it. Brown and Chambless primarily focus on claims that the CDC exceeded its authority under the relevant federal law and that interpreting the law broadly enough to allow the eviction moratorium would violate the "nondelegation" doctrine (which limits the extent to which Congress can delegate its lawmaking authority to the executive branch). By contrast, Terkel considers the argument that the moratorium exceeds the power of the federal government under its authority to regulate interstate commerce, even as augmented by the Necessary and Proper Clause. If that argument (the only one made by the plaintiffs in Terkel) prevails, the eviction moratorium would be unconstitutional even if properly authorized by Congress.

In my view, which on this point aligns with that of most other academics, the nondelegation and statutory arguments rejected in Brown and Chambless are much stronger than the limited power theory that prevailed in Terkel. But I have to admit that, so far, the arguments I like better have not done as well as the one I am much more skeptical about. It could be just a function of the particular judges who heard the three cases. Judge J. Campbell Barker, who heard the Texas case is a conservative Trump appointee; but the same is true of Judge J.P. Boulee, who decided Brown v. Azar. So I have to admit that this might be a situation where judges' views of which arguments are best don't align with those of legal scholars. If so, it would be far from the first such occasion!

Nonetheless, I continue to think that the Brown and Chambless rulings were too quick to dismiss the statutory and nondelegation theories, while the limited power argument is more problematic. In my view, the judges in Brown and Chambless, fail to take sufficient account of the fact that the government's interpretation of the relevant authorizing statute would give the CDC the power to suppress almost any human activity at any time. If the government is right to argue that the statutes and regulations in question give the CDC the power to impose a nationwide eviction moratorium, as opposed to more narrowly targeted local measures, the same logic would give it virtually unlimited authority to ban other economic and social activities. I explain the point here:

[U]nder the text of the regulation [and the authorizing statute], the CDC need not prove that the regulations in question really are "reasonably necessary" or that state restrictions really are "insufficient." They need only assert ("deem") that such is the case.

This broad interpretation of the regulation would give the executive the power to restrict almost any type of activity. Pretty much any economic transaction or movement of people and  goods could potentially spread disease in some way. Nor is that authority limited to particularly deadly diseases such as Covid-19. It could just as readily apply to virtually any other communicable disease, such as the flu or even the common cold.

Every year, thousands of people die because of the flu, and restrictions on mobility or on economic and social activity could  be seen as "reasonable" ways to limit its spread. 42 CFR Section 70.1 (on which the definition of disease in Section 70.2 is based) in fact defines "communicable diseases" as "illnesses due to infectious agents or their toxic products, which may be transmitted from a reservoir to a susceptible host either directly as from an infected person or animal or indirectly through the agency of an intermediate plant or animal host, vector, or the inanimate environment." Notice that this applies to any disease spread by "infectious agents," regardless of severity. The flu and the common cold clearly qualify!

If Trump can use this authority to impose a nationwide eviction moratorium, Joe Biden (or some other future president) could use it to impose a nationwide mask mandate, a nationwide lockdown, or just about any other restriction of any activity that could potentially reduce the spread of the flu, the common cold, or any other disease.

Such virtually limitless executive authority to impose restrictions and mandates would make a hash of the separation of powers, enabling the president to circumvent Congress's authority on a massive scale. It also would completely undermine any semblance of "nondelegation" restrictions on grants of power to the executive.

In Chambless, the court nonetheless concluded that there is no nondelegation problem here, because regulation relied on by the CDC still provides an "intelligible principle" for the exercise of executive discretion, as required by Supreme Court precedent. Specifically, it gives the CDC the authority to "take such measures to prevent such spread of the [communicable] diseases as he/she deems reasonably necessary." But there can be no intelligible principle where the supposed limitation on discretion gives the executive the power to suppress virtually any activity it wants, simply by "deeming" that they are "reasonably necessary" to stop the spread of disease—an assertion that can be made at any time. The whole point of the "intelligible principle" rule is to limit the delegation of congressional power to executive discretion. That rule, therefore, cannot be used to uphold a delegation that imposes no meaningful limit on discretion of any kind.

In Brown v. Azar, the court doesn't directly consider nondelegation at all, focusing strictly on statutory arguments of the sort summarized by co-blogger Josh Blackman here. But the judge should have considered the nondelegation issue when analyzing the plaintiffs' statutory arguments because of the longstanding rule that statutes should be construed in a way that, if possible, avoids constitutional problems. Nondelegation is, obviously, a serious constitutional problem. The law authorizing CDC public health measures should be construed in a way that avoids potentially violating nondelegation rules, if possible.

By contrast, I have more reservations about the argument that prevailed in Terkel: that federal government did not have the power to authorize the eviction moratorium under the Commerce Clause, which gives Congress the authority to regulate "commerce with foreign nations, and among the several states." I actually agree that the eviction moratorium exceeds congressional power under the text and original meaning of the Commerce Clause. A nationwide moratorium on evictions—which usually involve transactions within a single state—is not a regulation of interstate commerce. Rather, it restricts commercial transactions within a single state involving an asset that cannot even move across state lines.

Unfortunately, various Supreme Court precedents interpret the Commerce Clause as giving Congress the authority to regulate many in-state activities that, in the aggregate, have a "substantial effect" on interstate commerce. In cases like United States v. Lopez and Gonzales v. Raich, the Supreme Court also indicated that this category includes nearly all "economic activity."

In Terkel, Judge Barker concludes that the eviction moratorium is not a regulation of economic activity because it only restricts evictions, but does not suspend the requirement that tenants continue to pay rent. Thus, the CDC order doesn't regulate economic activity because  does not have "any effect on the parties' financial relationship."

This strikes me as unpersuasive. Preventing eviction has an obvious effect on financial obligations, because it terminates the landlord-tenant relationship, thus ending any obligation the tenant might have to continue paying rent in the future. Eviction is, therefore, economic activity in much the same way as firing an employee is. Neither changes the two parties' obligations during the period when their commercial relationship was still in effect. The employer must still pay the employee any salary she was owed for the period before she was fired, and the tenant still owes rent for the period prior to eviction. But both nonetheless qualify as economic transactions on any plausible sense of the word.

If an eviction moratorium is not a regulation of economic activity because it doesn't change financial obligations in the sense described by Judge Barker, the same can be said of federal laws restricting the firing of employees and the termination of various other economic relationships. I doubt the Supreme Court will be willing to go there.

That said, the concept of "economic activity," as used by the Supreme Court, is far from a model of clarity. There may be other ways to distinguish eviction moratoria from other types of in-state transactions that the federal government regulates. Among other things, eviction moratoria regulate the use of real estate, which is a quintessentially immobile local asset, not a commodity or service that can be shipped across interstate lines. While out-of-staters can rent or buy property, they cannot move it. That makes federal land-use regulation different from federal regulation of the production of goods and services that move across state boundaries. This distinction could potentially justify giving a narrower scope to federal power over the former under the Commerce Clause, without greatly disturbing existing Supreme Court precedent.

Much more can be said about all three of the decisions on the legality of the CDC  eviction moratorium. There are also other lawsuits out there challenging the order. I addressed some of the issues involved in greater detail here and here (and also explaining why I am skeptical that the eviction moratorium is actually needed to protect needy tenants and prevent the spread of disease).

For now, I will only add that it is likely the legal battle over this issues is likely to continue. All three cases could eventually make their way to appellate courts. While Biden's extension of the initial Trump moratorium only lasts till March 31, there is a good chance it will be extended further at that time. It is also possible that Congress will impose a statutory eviction moratorium by passing the relevant provision of the Biden Administration's stimulus bill (which would impose a statutory moratorium until September). If that happens, it would moot out the statutory and nondelegation issues raised in Brown and Chambless. But the federalism argument addressed in Terkel would remain a live issue, as it applies even if Congress has clearly authorized the moratorium and done so in a way that avoid nondelegation problems.

NOTE: The plaintiffs in some of the lawsuits against the eviction moratorium, including the Chambless case, 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. When I initially put up this note, I had  forgotten that Chambless is a PLF case, and thus failed to indicate that. I apologize for the oversight.

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  1. “I myself have played a minor (unpaid) role in advising PLF on this litigation.”

    Why “myself?”

    1. English, man! Do you grok it?

    2. It’s called an intensifier.

    3. No doubt one of your favorite authors, Wm. F. Buckley, once responded to a query as to why he used a particular longer word in lieu of a shorter and simpler one by saying, “I desired the extra syllable.”

    4. Get an education. Not from a school that thinks that right answers, objectivity, and individualism are white supremacy.

      1. Or from anyone that believes that 2+2 is anything other than 4.

        1. What? 2+2 doesn’t equal peanut butter? 🙂

          1. It probably does under the new anti-racist math.

            1. But what happens if you divide by peanut butter?

              1. If you’re dividing bread or crackers, it’s delicious. Anything else and all bets are off.

              2. 6/peanut butter = sandwich

    5. It’s bait. To allow the sneerers to show how petty and stupid they are.

      Which you took, hook, line and sinker.

  2. Regardless on the constitutionality (which unless we are ready to say the federal government has tradition police powers the federally mandated ban is most likely unconstitutional…) the eviction moratorium (or more accurately a “ban” at this point) is horrible public policy.

    Landlords are dealing with the cash crunch and renters are getting wise to the fact that only a chump would pay full rent at this point. The result is going to be a housing crisis like we haven’t seen since maybe the early 20th century.

    Landlords have largely handled the cash crunch not by just stuffing less money into their bank accounts, but largely by driving down their expenses. Maintenance has either been deferred or just written off. Drive though the rental heavy neighborhoods of any town and you will see they look much more physically run down then they did a year ago. Those properties age quickly without the usual quick paint job or lawn care contract. The insides don’t look much better either as landlords just tell non-paying tenants to “shove it” with any request to fix anything.

    Tenants are not saving the money either, because they either don’t have it or are wise enough to know if they put it into a savings account sooner or later a court might come after it. The number of tenants this policy is stopping from becoming homeless is rather small. Generally, most are shorting their rent check and then dropping the difference on consumer goods. Again, drive through any rental complex and look at the dumpsters. There will be piles of home entertainment boxes and such stacked up, more than your usual move-in/move-out scenario. You will also notice some newer cars in the parking lot as they are taking a portion of their rent and using that to pay for “no credit check” auto loans.

    The bubble is going to burst and I can’t believe that policy makers are completely blind and deaf to this all. This smells of a manufactured bubble designed to promote a “crisis” that will require an “answer” by our government overseers.

    I’ve got a friend who is a landlord for three units. He has been dealing with all of his tenants paying half rent for a year. But refused to renew their annual lease recently only to get a letter from some state housing authority saying that constituted “retaliation” for a violation of the eviction ban. Instead of facing a lawsuit he made the tenants sign repayment agreements as part of their lease. And we all know that even though the government is telling us this is not rent forgiveness when push comes to shove it will be for 95% of tenants.

    Another guy I work with was asking for advice if he should continue to pay his rent because no one in his complex is really paying or at least not the full rent amount. The prevailing opinion was he was a fool to be throwing away his cash. He should negotiate with the landlord for a reduced rent or just short pay especially since he is looking to move in a few months.

    What does this mean of 2022 and beyond? The rise of slumlords who got burned. Probably government rent regulations including rent control. Shitty housing for renters and blighted areas of town for the homeowners. In general, everyone is going to lose. But who cares right now, the renter has a new flat screen and well….

    1. I know a lot of landlords are heavily leveraged — the banks don’t want to foreclose but we may wind up with abandoned properties…

    2. The bubble is going to burst and I can’t believe that policy makers are completely blind and deaf to this all. This smells of a manufactured bubble designed to promote a “crisis” that will require an “answer” by our government overseers.

      I don’t give politicians enough credit to think that far ahead. I think rather the political mindset is to enact some law now, any law, to show action, knowing further action will be required later, and not really caring what that will be.

    3. But refused to renew their annual lease recently only to get a letter from some state housing authority saying that constituted “retaliation” for a violation of the eviction ban.

      Your friend should have stood his ground on that.

      The eviction moratorium is not a rent moratorium. All that back rent is due (and collectable in civil court).

      It’s also not a lease expiration or non-renewal moratorium. Leases continue to expire as usual, and don’t have to be renewed.

      One good way to justify a non-renewal is to schedule some deferred maintenance on the unit for a month gap between renters. Doesn’t have to be high-dollar maintenance. A good inspection is always easier in a vacant unit…

      1. “The eviction moratorium is not a rent moratorium. All that back rent is due (and collectable in civil court).”

        Have you ever tried to collect past due rent?

        The reality is for all practical purposes it is a rent moratorium.

        1. Don’t usually agree with joe Dallas but this is absolutely right. Deferred rent might as well be denominated in Monopoly money. The idea that in 3 or 6 months tenants are going to be able to come up with months of deferred rent is laughable. Jurisdictions that have passed these moritoria need to step up and fill the gap here.

      2. “The eviction moratorium is not a rent moratorium.”

        Right, it’s not like the vast majority of blocked evictions are for non-payment of rent.

        1. For all intents it is a rent moratorium. Some tenants are paying, but very few are at full rent. Landlords I know were saying tenants were making good on rent, even backed rent, up until the summer. After that the checks just started never coming in. Rent demand letters went unanswered and when further inquiries were made (usually a knock at the door and “where is my rent”) the tenant just shrugged and said they got a letter from some tenant rights organization saying if they did not have the money they didn’t have to pay. And, again these tenants are not putting the money away into a savings account hedging their bets. Most are using to it to purchase consumer goods, home electronics, or “no credit check” auto loans. That means the money is “gone” for collection purposes.

          I imagine some tenants will eventually make good to avoid the eviction record which can (or at least has in the past) made renting with larger landlords difficult. Some may also be interested in purchasing property so won’t want the hit on their credit report. But it wouldn’t surprise me if Congress or many states do the same thing they did with credit reporting and medical debts, that is making it almost impossible to use that as leverage to collect or settle debt by castrating the ability to put it on a credit file.

          The banks are eventually going to start pushing defaults and foreclosures on rental properties. And local municipalities are going to force maintenance. That is when this bubble starts to burst. The few private landlords I know are looking to unload their properties in a private sale, but again you can’t evict the renters overstaying a lease or not paying so sales are difficult. But, due to high demand they are still going through just the landlord is taking the hit on the sale price having to discount 10-15%. I’ve also heard lots of rumors of self-help evictions becoming more the norm. Landlords will just change the locks or schedule renovation work. Even if the tenant can get back in they will find say the bathroom completely gutted or kitchen gone.

          The result is going to be a huge mess. A crunch in the rental market. Substandard rental properties available for higher than market rates. Abandoned properties in receivership. And transfers of rental properties to private owners choking supply in certain areas. I’m certainly glad I am not a renter or landlord anymore. Both are going to be hurting bad in 2022.

      3. The eviction moratorium is not a rent moratorium. All that back rent is due (and collectable in civil court).

        This is one of those clear cases of theory being vaporized upon contact with reality.

  3. Is a regulation completely preventing a landlord from collecting rent on his property not a taking? Have there been taking challenges?

    Like I’m not saying every regulation of rental property is a regulatory taking, but this seems like a quintessential example of a regulatory taking.

    1. One argument is that is not a taking since the rent is not forgiven – the tenant still owes you the rent

      Though in reality that argument is not persuasive – For all practical purposes, the rent becomes uncollectible.

      1. [blockquote]completely preventing a landlord from collecting rent[/blockquote]

        It’s not a [bold]rent[/bold] moratorium. It’s an eviction moratorium.

        The rent is still due, and can still be collected the ordinary way (by a civil action in court).

        1. “Dear Mr. Landlord. I’d like to pay you the rent due. However, I appear to have spent the rent money on this lawyer who is representing me in civil court. Thank you for allowing me to continue to live in my apartment, without paying rent. No, you cannot evict me, I’m staying. And since my rent bill is piling up, I’ll be sure to spend the money on various other items, before paying you”.

          1. It would be best not to taunt the landlord, because admitting having money gives him reason to go after you for back rent and gives a judge reason to haul you in for a (virtual) examination of what assets might be taken to pay back rent.

        2. Alex – any guesses on the % of past due rent that is collected from deliquent tenants?

          Once past 2 months, its close to zero

        3. “It’s not a [bold]rent[/bold] moratorium.”

          So landlords can still evict tenants for non-payment of rent despite the so call “eviction moratorium”?

          1. No. They can sue them for the unpaid rent and get a judgment. As several posters noted, a possibly uncollectible one, but a judgment nonetheless.

      2. IIUC they will punish you if you go to court and exercise your right to evict. It’s hard to see how that doesn’t violate your right to petition, but I’m sure smart judges have explained that somehow.

  4. It seems to me that all of the arguments against the eviction moratorium apply with equal force against the interstate travel mask order.

    Including the argument that it’s horrible public policy.

  5. Sounds to me like you might actually be more comfortable with the insane overreach of current commerce clause jurisprudence than the judiciary are. Perhaps you’ve accepted defeat in a battle that isn’t really lost yet?

    1. It is a pretty insane overreach. Farther than Wickard or Raich, both which dealt with agricultural goods which were shipped across state borders and had national markets.

    2. The judiciary follows Raich and Wickard. The fact that a hand-picked very young judge in a 2 judge court in Texas doesn’t, in no way changes that fact.

      1. Only if you ignore the fact that unlike Raich and Wickard in relation to marijuana and wheat, there’s no interstate market in rental properties

        1. That’s inadequate legal reasoning. Raich and Wickard announce broad rules that are in no way limited to pot or wheat.

          1. Nor to what the Constitution actually dictates.

            1. The Constitution dictates “inferior courts” follow SCOTUS.

          2. Raich and Wickard were largely decided because the goods they dealt with had an interstate market. Therefore changes in the local consumption or production of the goods, would in turn affect the interstate market of the goods. If you produce more wheat in a local market, that means less will be bought from the interstate market, affecting the interstate market. If you produce more marijuana in the local market, it drives down prices in the interstate markets. It would also affect other goods shipped across state lines….Potatoes, Steel, Computers, or vaccines.

            The market in rental properties however, is inherently local. Rental properties cannot be shipped across state lines. There is no interstate market. Producing more 1 BR apartments in Iowa doesn’t drive down the price of 1 BR apartments in New York.

            1. The prices of apartments in Jersey City, NJ affect the prices in New York City.

              1. And for this lawsuit, in what states does raising or lowering the price of an apartment in Lukfin, Texas realistically affect? Besides Texas, of course.

                1. Under Wickard’s aggregation principle, if enough people leave Texas because of too-high rent, that will impact the rental market in any other state where they move.

                  1. Under Morrison, the argument that “people will move due to the circumstances, and that will have an economic effect” was shot down.

                    1. … because the regulation at issue was not one of an economic activity.

                    2. And this particular regulation was passed under the CDC’s authority to presumably reduce spread of a disease in a pandemic…not necessarily an “economic activity”

                    3. Again, Judge Barker so ruled, but Somin makes a persuasive argument why Barker is wrong.

      2. So you say, but I see plenty of diffrentation between this case and those two, surely you can come up with a more relevant instance of congress regulating something more similar to apartment evictions.

        1. It’s true. Wishful thinking right wingers who hate the Supreme Court’s commerce clause jurisprudence always find phony, frivolous arguments to distinguish Wickard and Raich.

          But the cases are not actually distinguishable by anyone being honest.

          1. Read up on ‘No true Scotsman’

          2. You wouldn’t HAVE to distinguish for an honest Court. An honest Court would grasp at any opportunity given it to utterly repudiate Wickard.

            1. Disagreeing with you is not dishonesty.

              I know you don’t have the humility to realize some people may not see the things you think are obvious, but consider that people honestly not seeing things your way may be more likely than a century-long conspiracy.

              1. No, I agree that disagreeing with me isn’t inherently dishonesty.

                But constitutional jurisprudence has wandered a long, long way from merely questionable departures from the text.

                In this case, a clause which deliberately qualified the power in question, a power to regulate commerce,, and only commerce that crosses specified boundaries, has been inflated into a power to regulate basically anything, commerce or not, interstate or not, so long as Congress uses some ‘magic’ words about interstate commerce.

                The Justices have to be aware what total bullshit that is.

                1. Again, just because you think it’s total bullshit doesn’t mean Justices who disagree with you are lying.

                  And they put their reasoning in their decisions, even, so you don’t need to continually appeal to incredulity.

                  1. “What are you going to believe, me or your lying text and grammar?” isn’t a terribly persuasive argument. Yes, they put their rationalizations in their decisions. This really just serves to expose how transparent their excuses are.

                    The living constitutionalists may have the power to impose their bullshit on everybody else, but they don’t have the moral authority to demand the people they impose it on pretend it isn’t bullshit.

                2. “The Justices have to be aware what total bullshit that is.”

                  I think they do, but they justify it as needed for the expansive power of the federal state which is “required” today.

                  Rolling it back, and actually having an amendment, as needed, would be the better option, from a pure standpoint.

                  1. Read McCulloch, and Gibbons v. Ogden, and Wickard.

                    Because if you’re going to take a position the other side is lying, you should hear their argument.

                    Unless you don’t care, and are lying yourself.

                    1. It’s interesting that you assume we haven’t read them. I have, and the excuses aren’t persuasive. They keep running up against the fact that the drafters of the Constitution deliberately qualified the power, and their rulings are mooting the qualifications.

                    2. I didn’t say that they were “lying”. What I said was quite different.

                  2. The problem with amending the Constitution at this point is that we’re already in the total bullshit territory, have been for a while.

                    The courts accepting total bullshit if they think it’s “needed” takes the pressure off for the amendment, so you’re never going to get the amendment.

                    And the amendment exposes the bullshit, so nobody who’s already complicit in the bullshit will support the amendment. Doing so would amount to a confession.

                3. Wickard is within a reasonable interpretation of the text of the Necessary and Proper Clause carrying into execution the powers delegated in the Commerce Clause.

                  1. No, it isn’t. The power is to regulate interstate commerce. It can allow as necessary and proper, things that aren’t technically regulation of interstate commerce, if they are necessary to enable it. State of origin labeling, for instance.

                    But the reasoning behind Wickard aims at abolishing the distinction between intra and interstate commerce, to render both subject to regulation.

                    1. Your interpretation of “necessary” isn’t the only reasonable one. McCulloch established that “necessary” means convenient or useful. Thus, it is reasonable to read the text that regulating intrastate commerce which substantially affects interstate commerce is necessary to regulating interstate commerce.

                    2. Josh, I’ve frequently noticed that the courts treat “necessary and proper” as meaning, “convenient and, eh, whatever”. That’s not a reasonable reading of it, it’s a motivated reading of it. Motivated by the desire to abolish the limits which were deliberately placed on the federal government’s power.

                    3. As a matter of plain English, explained by Justice Marshall in McCulloch, it is reasonable. The only way to conclude it is not reasonable is to go beyond the plain text to your viewpoint of what the limits of federal power should be.

                    4. Wickard was unreasonable, especially considering the opinion of the Founders at the time and throughout the 1800’s

                      Consider the 18th Amendment. Why was it created? Why did it NEED to be created? If the Commerce Clause really gave Congress the power to regulate commerce, as Wickard ultimately dictated, there was no need for the 18th amendment to be passed. The Commerce Clause powers would have been enough on their own.

                      But, Congress and the States at the time clearly thought an Amendment was needed. That the Commerce Clause powers didn’t extend to such actions.

                    5. Both positions are reasonable based on the text.

                  2. McCulloch was clearly wrong on what ‘necessary and proper’ means, as anyone with a passing familiarity with English will readily determine.

                    And not only is it wrong as a matter of English, its wrong as a matter of interpreting the nature of the constitution – which was supposed to be a grant of limited powers to the federal government. By interpreting ‘necessary and proper’ to be ‘whatever is convenient for the government’, it effectively upends the entire purpose of the constitution, and it stops being a document of limiting powers.

                    All the errors here start there. McCulloch basically tore up the constitution.

                    Wickard is ridiculous and clearly not intended. But even in Wickard, SCOTUS takes great pains to illuminate the relevant transactions effect on interstate commerce. The only reason to do this is because there is some sort of commerce which is not interstate. If not real property, then what? Why bother to focus on the effect of the commerce if all commerce is capable of regulation by the feds?

          3. Why bother to specify the effect, in Wickard and Raich, on the interstate market, if not to specifically distinguish them from goods which cannot be traded interstate? (ie, real property). Why not just say the USFG can regulate all economic transactions, period? The only reason to even include those arguments is because SCOTUS believed there were economic transactions that weren’t capable of federal regulation. If not real property, then what?

          4. Ok, well let’s look how they can be differentiated,

            Rental property can’t be moved across state lines, cattle, wheat, and marijuana can and do move across state lines daily. As Ilya said “Rather, it restricts commercial transactions within a single state involving an asset that cannot even move across state lines.”

            The other rather large difference is that the congressional grant of authority is for disease prevention, the CDC is not an economic regulation agency, it is absurd on it’s face that congress would have intended to grant such a broad grant to regulate the economy to the CDC.

  6. While there is a lot to be said with the courts general approach to use the narrowest grounds for nullifying a regulation, in this kind of overreach where Congress didn’t delegate authority for a eviction moratorium and Congress doesn’t have the authority to impose an eviction moratorium, then why not just settle the whole thing up front?

  7. Co-blogger Stewart Baker pointed out an interesting twist on this issue.

    When the moratorium ends, landlords will be free to evict tenants for non-payment of rent. But then they need replacement tenants, and the rental market will be flooded with other tenants who were similarly evicted for non-payment. It could be smarter for landlords to make a settlement with the existing tenants, than to take a chance on new tenants. It is a “Devil you know versus the Devil you don’t know,” situation.

    It goes beyond what the law can remedy. This pandemic is a god awful mess. Cleaning up the mess will require just about everyone to re-think principles and policies.

    We don’t hear about mortgages. The banks can always tack it onto the loan, making a 20 year mortgage become a 30 year mortgage.

    We don’t hear about non-payment of municipal property taxes. Is there a moratorium on tax seizures?

    1. This isn’t a case of the pandemic being a mess. It’s a case of the response to the pandemic being a mess. I think at this point it’s becoming clear that the way governments, all over, responded to this pandemic may have actually caused more damage than the virus itself.

    2. Much of that is going to depend on the tenant and their relationship, and how much they tried to pay/paid.

      Did they kick in as much as they could every month? Or at least a little? Did they get a new job? Or even try? Are they just a month behind? Or are they 10 months behind?

      Unemployment is actually relatively good right now. 6.5%. If your tenant missed a couple months last April and May when things were rough, but paid every month since then…keep ’em. If you haven’t seen a penny from your tenant since April 2020…you gotta evict.

    3. The smartest thing for landlords would be to take the property off the rental market and if it’s a large apartment comples, convert it to condos.

      1. Kind of hard to do, though, when you still can’t evict anybody.

        I wonder, can you at least shut off utilities to apartments that aren’t paying rent?

  8. I cannot think of anything LESS in interstate commerce than a rental building.
    But given that “shall not be infringed” has been read to include many, many infringements, there is no telling anymore what is or is not constitutional this week. (or next)

    1. And so it was designed that the Department of Commerce was the most powerful department of all in the Executive Branch, as everything affected commerce, so the Department of Commerce could and did regulate everything and anyone.

      On August 3rd, 2025, the Secretary of Commerce declared war on Uzbekistan. When the President of the United States objected, the Secretary of Commerce said “well war affects commerce, so it falls under my domain”.

    2. I love how you guys are obsessed with “shall not be infringed” but don’t pay any attention to a “well regulated militia” or “necessary to the security of a free state”.

      1. We pay attention to those, as well as the lack of any indication that they should be read to limit the operative clause, “the right of the people to keep and bear arms shall not be infringed.”

      2. Shove your whataboutism

      3. We pay attention to them, it’s just that, unlike you, we actually understand them.

        1. No, you don’t pay attention to them in the way you “pay attention” to “shall not be infringed” (i.e., take the phrase completely out of context and claim it is an argument ender).

          You guys are a bunch of liars on the Second Amendment. I have no problem defending Heller and even arguing that it should be extended. But anyone who says “shall not be infringed! Aha!’ is reading the Constitution with the comprehension of a 2 year old.

          1. Anyone who even cites the “well regulated militia” clause is either being stupid or dishonest. Which are you?

          2. Let me explain this, Dilan, though you’ve doubtless had it explained to you before.

            Native speakers of English will understand that the preface explains why the right is important, not what the right is or who has it. There’s an implied, “because”. They will also understand that “well regulated” refers to the militia, while the right is attributed to “the people”.

            Historically informed native speakers of English will understand that the contemporaneous meaning of “well regulated” was “in good order”, not, “subject to arbitrary rules”.

            So, what the amendment actually means is that, because a well trained and equipped militia is necessary to the security of a free state, the people’s right to own and carry arms shall not be encroached upon.

            The relevance of the militia here is that the arms protected are those suitable for militia, which is to say, military, use. Not hunting, self defense, target shooting. The arms protected are military arms.

            If you go back and read US v Miller, you will see this quite clearly: “Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.” THAT was why Miller lost: Because no evidence was presented that the gun in question was suitable for military purposes. (Because it was a trial in abstentia, Miller was not represented.)

            Had Miller been represented, and his counsel had presented such evidence, (Similar guns were used in trench warfare in WWI, so it would have been easy.) in theory he would have prevailed. Even though he was NOT a member of the militia, being a convicted felon, only a member of the people.

            The purpose of the amendment, as expressed in multiple publications at the time, was to guarantee an armed populace familiar with the use of those arms, from which a militia could be raised as needed. It had nothing to do with the rights of the militia themselves, but instead the population from which the militia was recruited. If they were already armed and knew how to use those arms, they would be immediately useful.

            Current inversion of the amendment, to only apply to non-military arms, is a perversion of its intent. It was never about hunting or self defense, it was about American citizens being entitled to “their swords and every terrible implement of the soldier”.

            1. Absolutely. And the context in which it was passed is equally important. That context was the British Government attempting to seize the weapons of American Colonists.

            2. This is a laugh. Litigate some cases Brett. Tell a judge a purpose clause can’t substantively limit a right.

              You guys are ignorant about basic legal concepts. And you wallow in your ignorance.

              1. But can a purpose clause permit substantive limitations on a right which frustrate the purpose? Because that’s where we are on 2nd amendment jurisprudence right now.

                1. Right: The amendment was adopted to KEEP the people from being disarmed, most people who blather on about the purpose clause try to use it to justify disarming people.

                  1. Not only that, but the purpose was to keep people armed with military grade hardware. Which as you point out, is the opposite of the direction jurisprudence has gone.

              2. “Litigate some cases Brett. Tell a judge a purpose clause can’t substantively limit a right.”

                You’re responding to a comment where Brett highlighted a case where a judge substantively limited the right to weapons that were useful for the common defense.

                But if you limit it to much, you have to contend with the fact that the text defines the right very broadly. And I haven’t heard any arguments from anti-gun types that address that.

              3. No, it’s not a question of ignorance. Our legal system has gone down an ugly path, in the cause of rendering the Constitution’s limits on federal power void.

                We’re not obligated to look about, and say that everything is rosy, or that we think there’s anything legitimate about the distortions necessary to run a modern leviathan central state under a constitution written for a limited power government of a federation.

                Ignorance would be our thinking that these arguments we’re making being correct implies that they’d actually prevail in court. They wouldn’t.

                But that’s not because they’re wrong, it’s because the judges wouldn’t give a shit whether they’re right. The lower court judges are constrained to following higher court precedents, right OR wrong. And the Supreme court has devoted itself to preserving the Leviathan against constitutional challenges, would actually feel guilty if they upheld the Constitution rather than the Leviathan.

                1. But that’s not because they’re wrong, it’s because the judges wouldn’t give a shit whether they’re right

                  No, Brett. This is crap. YOU think this is wrong, you think it very strongly. That does not mean judges that disagree with you are judging in bad faith.

                  Read the freaking decisions, they include some careful reasoning that puts the lie to your assumption of bad faith for anyone doesn’t go in for your personal feeling about Constitution.

                  1. I HAVE read the freaking decisions. The ‘very careful reasoning’ is largely orthogonal to the question of what IS constitutional, and tends to focus on what should be constitutional.

                    Yeah, I get it: If they can’t regulate grain within a state, their goal of controlling the market price of grain, might be less effective, maybe even futile, because people would switch to intra-state suppliers.

                    So. Freaking. What.

                    To riff off Josh’s suggestion: Suppose Congress got it into their heads that it was offensive to have people painting their houses red, so, with the aim of preventing houses from being painted red, they banned interstate commerce in red house paint.

                    Obviously, intrastate sales of red paint, and red pigments that could be added to uncolored paint, would likely render that regulation less than effective at achieving its goal.

                    Again, so freaking what?

                    The regulation can still be enforced, Congress has the power to ban interstate commerce in red house paint, stupid as it may be.

                    But they don’t have the power to ban painting houses red, because that’s not interstate commerce, and so the goal was beyond the proper reach of the commerce clause.

                    Likewise, in Wickard, the goal was to control the price of grain being sold within states. That’s not interstate commerce. They could control the amount of grain shipped across state borders, or even the price it had to have to be so shipped. But the grain that didn’t cross those borders wasn’t interstate commerce, and the price THAT grain sold for within a state was not within their proper reach.

                    It’s “necessary and proper”, not, “Convenient, and anything goes.”

                    1. If you think an all houses must be painted red law passes commerce clause muster, you have not understood any of the cases. And Josh lays out this distinction pretty well below, and yet you go back to it as though Josh didn’t say anything.

                      You refuse to see that, because nuance might upset this Sole Arbiter of the Constitution thing you got going on.

                      You also don’t understand the goal in Wickard. The law as part of a national scheme, not an intrastate one. Read the case again. Particularly the part about aggregate effect.

                    2. To be fair to Brett, he assumed a federal law that banned interstate commerce in red paint. Under that assumption, Congress may also ban the painting of red houses.

                      Where Brett messes up is his claim the goal of the interstate ban of red paint was to ban painting houses red. If that were true, I agree the bootstrapping is pretextual and the ban on painting houses red fails. But, that requires very convincing evidence. And lacking such evidence, the ban passes muster.

                    3. “You also don’t understand the goal in Wickard. The law as part of a national scheme, not an intrastate one. Read the case again. Particularly the part about aggregate effect.”

                      Sure, I understand: It was a price support program. It intended to drive up the price of grain by limiting production. Wickard was unquestionably frustrating its intent, anything that reduced demand for grain would frustrate the intent of the program.
                      But it was only a “national” program in the sense that it was messing with intra-state commerce in multiple states at the same time.

                      “Nobody can paint their house red” is a national scheme, too, in that sense.

                    4. Price of wheat is commercial.
                      Color of houses is not.

                    5. And Color of roads? Non-Federal roads? Is that non-commercial too?

                      Can the federal government tell states what color its roads must be and what color they can’t be?

      4. Not at all, Congress worded the 2nd amendment as they did to assert a federal and congressional authority to something purely local like gun regulations. It’s clearly a federal interest to secure liberty, and it is clearly a congressional responsibility to ensure arming the militia, so congress refered back to the common defense and militia clauses as justification of why it required a provision in the federal constitution to ban infringement of the right to keep and bear arms.

      5. I love how you guys are obsessed with “shall not be infringed” but don’t pay any attention to a “well regulated militia” or “necessary to the security of a free state”.

        That bullshit argument was stale and tired the first 100 or so times you trotted it out (only to be demolished just as many times). It hasn’t gotten any less stale for having been haulted out of the compost heap one more time.

  9. “Eviction is, therefore, economic activity in much the same way as firing an employee is.”

    Sounds like cessation of economic activity to me. You know, inactivity.

  10. The CC argument wasn’t front and center in Chambless, but it was addressed and found utterly without merit. In fact, you could even say it was only discussed so briefly because the argument is plainly meritless under current precedent. (Prof. Somin concedes this even if he takes issue with the precedents themselves.)

    Granted, it’s only persuasive authority in EDTX, but it’s still highly relevant. So it seems quite sloppy for the Terkel court not to at least acknowledge it.

  11. The eviction mortarium is simply an example of “From each according to his whiteness, to each according to his non-whiteness.”

    It’s as basic as that

  12. And it was one thing in March of last year when Congress didn’t know how the CARES Act would play out. Now that we know that people took their “stimulus” and bought iPhones, TVs, stereos, video game consoles and other durable goods, it’s unconscionable that the piece of shit Biden, Pelosi, and Schumer are intentionally trying to continue it, by destroying the dollar.

    All of them deserve to get tumors.

  13. Among other things, eviction moratoria regulate the use of real estate, which is a quintessentially immobile local asset, not a commodity or service that can be shipped across interstate lines. While out-of-staters can rent or buy property, they cannot move it. That makes federal land-use regulation different from federal regulation of the production of goods and services that move across state boundaries.

    Who finds that persuasive? I don’t.

    So what if the property doesn’t move? In this case, the customers move. The money moves.

    Someone who rents interstate relocates, perhaps taking along an entire extended family. It’s an action with potentially decades-long economic implications, both for the venue left behind, and for the venue moved into.

    Broadening the rental market beyond in-state prospects has potential to notably increase real estate prices for other landlords. Or reduce them, depending on which way the net flow may be going.

    Speaking generally, I can’t think of anything within the capability of an ordinary non-wealthy American with more power to deliver long-lasting effect on interstate commerce than to relocate his family from one state to another. Notably, actual effects can be beneficial or otherwise, as cases differ. Use of policy to optimize such effects can’t reasonably be beyond the scope of the commerce clause.

    1. You DO understand that your ‘reasoning’ renders EVERYTHING ‘interstate commerce’, without any exception? In fact, accomplishing that is the only reason anybody adopts that view.

      1. Literally breathing is regatable. Not fresh air, but the act of breathing itself. By the butterfly effect, a breath disrupts local molecules, leading to micro eddies, which lead to larger and larger disruptions, until, two months down the road, the daily weather is different, people are having sex at different time, and an entirely different generation of the future begins being conceived.

        There is no larger effecf on interstate commerce than that.

        And therefore, by this argument, which has fewer steps than some interstate commerce clause claims, the federal government gets to order you to wear a mask.

      2. Brett, I am not ready to suppose all commerce is interstate commerce. But for the third time, you have replied with reliance on a principle you leave tacit, and have neglected to justify—that every power granted under the Constitution is subject to some limit which courts are empowered to impose. Your argument amounts to assertion that even if all commerce actually is interstate commerce, the constitution can’t be read to regulate it, because that would violate this mysterious limit you have neither explained nor justified.

        I think you know as well as anyone that some enumerated powers are plenary. I suppose that is why you dodge the question.

        1. “But for the third time, you have replied with reliance on a principle you leave tacit, and have neglected to justify—that every power granted under the Constitution is subject to some limit which courts are empowered to impose.”

          Are you going to argue the contrary, that there are no limits the courts are empowered to enforce?

          We start with the fact that our’s is a Constitution of delegated powers, and explicitly states that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

          So, the Constitution explicitly tells us there are powers NOT delegated, and those powers are not merely unmentioned, they are reserved for the states and the people. It can not be proper to interpret a delegated power in such a way as to give the federal government a power it was NOT delegated.

          Which brings us back to the interstate commerce clause, which delegates to Congress the power to regulate commerce that crosses specific boundaries. Which is explicitly qualified to limit that regulatory power.

          It can’t be proper to interpret it so as to give Congress the general power to regulate which the clause explicitly excluded by those qualifications. To read it as though it read, “to regulate”, and nothing more.

          And, yes, this is a matter properly enforced by the courts. The Constitution is the highest law of the land, and it is the job of the courts to uphold laws, even those inconvenient to the government.

        2. I am not ready to suppose all commerce is interstate commerce

          Then it was pretty stupid of you to argue exactly that.

        3. that every power granted under the Constitution is subject to some limit which courts are empowered to impose

          Let’s make this so simple that not even you can miss it…

          What the Commerce Clause says, in it’s entirety:

          “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

          What the Commerce Clause does NOT say in it’s entirety:

          “To regulate Commerce;”

          You’re arguing that the bolded text sets no boundaries on Congress’ power to regulate commerce. The idiocy of that position is obvious.

          1. can’t miss it”

          2. “You’re arguing that the bolded text sets no boundaries on Congress’ power to regulate commerce.”

            It’s worse than that, far worse.

            “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

            THAT is the bolded text he argues sets no boundaries on Congress’ power. He wouldn’t turn the interstate commerce clause into a general grant of power to regulate commerce, he’d turn it into a general grant of power to regulate.

            1. I often find it difficult to follow his arguments because I usually assume that arguments are at least remotely rational. But then I have to remind myself that we’re talking about someone who actually believes that he owns the metadata that his cellular provider logs about his phone’s interactions with their equipment.

    2. This argument (it affects people moving, so it affects interstate commerce) has been specifically addressed in Lopez and Morrison and been rejected. From Morrison

      ” First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe.” Id., at 563-564 (citation omitted). The Government also argued that the presence of guns at schools poses a threat to the educational process, which in turn threatens to produce a less efficient and productive work force, which will negatively affect national productivity and thus interstate commerce. Ibid.
      We rejected these “costs of crime” and “national productivity” arguments because they would permit Congress
      to “regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce.”

      1. Lopez and Morrison rejected such attenuated affects on interstate commerce for regulations of non-economic activity. As Somin stated in the OP, Raich established such affects aren’t impermissibly attenuated for regulations of economic activity.

        1. Now here’s the key question.

          Is the moratorium on evictions really a intended regulation of ECONOMIC activity? Or is it designed as a law that is intended to regulate or control something else?

        2. Wickard and Raich take pains to point to the direct impact on interstate commerce of the regulated goods. There’s no reason to do this if all economic activity can be regulated. So, if not real property, what kinds of economic activity cannot be regulated? Because clearly SCOTUS doesn’t think all economic activity can be, or they could simply have SAID SO.

          1. SCOTUS has said economic activity that doesn’t substantially affect interstate commerce cannot be reached by Congress. It is logically wrong to conclude there must be at least one such example just because SCOTUS didn’t categorically conclude all economic activity is within the reach of Congress. SCOTUS has merely left the door open as a possibility, not as a certainty.

            1. If there’s no economic activity that doesn’t substantially affect interstate commerce, why bother to allow for it.

              That they’re making a distinction clearly means both are non-empty, or the distinction is meaningless. You’re asking us to believe SCOTUS were either a bunch of idiots, or were deliberately lying about the existence of such things. Limiting principles have to limit power in actuality, not just theory.

              ie, any claim that there exists a class of things which congress can not reach must actually be a non-empty class of things, or you’re being intellectually dishonest.

              1. To go further, you’re basically arguing that there isn’t a possibility of there being any such thing as ‘economic activity which doesn’t substantially affect interstate commerce’.

                1. No. I am arguing that SCOTUS believes there is a possibility, but not a certainty.

                  1. Let’s back up a second, we’re forgetting something really important about Wickard that was highlighted in Raich:

                    “Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”

                    The other two bases for federal intrusion to intrastate markets clearly don’t apply. Housing is neither an instrument of commerce nor a channel of commerce. (That is, it does not transport goods – why the USFG can regulate intrastate railroads, nor is it a facilitator or trade – why the USFG can regulate local banks).

                    Under this third prong of acceptable commerce clause actions, there must be some general scheme of interstate market regulation. There is no such market regulation in housing, nor can there be, because there is no interstate market in housing, much less one that would be frustrated by allowing evictions. Ergo, housing is outside the reach of the commerce clause.

                    So when you say SCOTUS merely allowed for the possibility of economic activity which doesn’t substantially affect interstate commerce, you’re eliding the important parts of the claim. SCOTUS requires a regulation of an interstate market in a commodity to even get to that part of the analysis, and then a showing that not regulating intrastate would frustrate that interstate regulation. If there is no interstate market in that good, or no scheme of federal regulation of that interstate market, the commerce clause abjectly doesn’t apply. You can’t just show *some* economic effect, it has to be an economic effect that frustrates an existing regulation of the interstate market.

                    The eviction moratorium is not such a scheme. Its purely a regulation of local markets. Even if we concede this has broader impact than merely local (questionable), there is no regulatory scheme of an ‘interstate market’ to frustrate. If there was a national rent control law, then the commerce clause would have an ‘in’, but absent something like that, no dice. (And of course, that should fail a commerce clause check too, because there’s no interstate market on housing).

                    So you say “SCOTUS has said economic activity that doesn’t substantially affect interstate commerce cannot be reached by Congress,” you’re leaving out a lot of important information. Because that’s not all that close to what they actually said.

                    1. I should probably also note that this lack of a broad and comprehensive regulatory scheme is exactly how SCOTUS distinguished Lopez from Raich (and Wickard).

                    2. As Somin pointed out, federal law broadly prohibits discrimination in employment. And yet, there is no federal regulation of an interstate market in most applications. Thus, the substantial affects doctrine does not require an antecedent federal regulation of an interstate market.

                    3. The federal government regulates employment in a lot of ways. That could be taken as a scheme of regulation of an interstate market altogether.

                      Alternately, employment discrimination prohibition could be seen as part of a broader labor regulation regime, which the government regulates substantially. (And when we talk about employment, we’re talking about the labor market).

                      Certainly there is at least an interstate market in labor. People can transport themselves across state lines for work. Housing doesn’t even satisfy the requirement that an interstate market exists.

                      Employment is also implicated in both channels and instruments of trade, so you’ve got alternate routes to a commerce clause justification there.

                      And that’s assuming regulating employment decisions has been justified using commerce clause jurisprudence. Citation definitely lacking.

                      I don’t find the employment scenario at all comparable.

                    4. Federal employment anti-discrimination has not been tested in court, but its Commerce Clause (actually N&P applied to Commerce) justification derives from Katzenbach v. McClung which upheld Title II of the Civil Rights Act (discrimination in places of public accommodation) as applied to restaurants. The food served moved in interstate commerce and the law was upheld on the basis of the effect on that commerce without reference to any federal regulatory scheme.

                    5. You might wish to go back and reread Katzenbach again. The court does center it in a scheme of regulation – one to protect the free flow of goods and people throughout the United States. They point to fact finding done by Congress that discrimination in restaurants harm commerce, including by impeding travel of discriminated against persons, and decreased willingness of businesses to set up in areas where public accommodations aren’t accommodating to all workers. Here’s them specifically situating it as a regulatory scheme:

                      “But where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, oar [our] investigation is at an end.” (Typo in Justia).

                      Secondly, they also emphasize that food moves in interstate commerce, and that discrimination impedes the flow of commerce (with reference to testimony to Congress to that effect). Houses, on the other hand, aren’t capable of moving across state lines.

                    6. The regulatory scheme your quote from Katzenbach refers to is Title II itself. There is no antecedent scheme you claim is necessary. The Congressional findings are about the substantial affects on interstate commerce.

                      Houses don’t move, but if people leave a state because of its rental market, it will in the aggregate substantially affect the rental market in another state.

                    7. Title II is a full scheme, the prohibition on discrimination in public accomodations is merely an element of it (which Katzenbach upheld specifically upheld). And the scheme’s purpose is to protect the free flow of commerce, for which congress conducted hearings on the matter. Allowing restaurants to discriminate would frustrate the free flow of commerce, based on those hearings, ergo, the individual mandate was a necessary part of a scheme to directly protect commerce amongst the states. It doesn’t need to be an *antecedent* scheme, but it does need to be (1) a broad regulatory framework that (2) has as a purpose the regulation of an interstate market.

                      – There is no broader and comprehensive economic regulatory scheme the eviction moratorium is a part of. It’s a stand alone policy, and
                      -the reason for the moratorium was explicitly for goals that aren’t economic. (An economic purpose can always be framed purely in terms of supply and demand – so, in those terms, what’s the purpose of the moratorium?) Compare to Lopez – a tangential economic hook is not enough.
                      -There is no interstate commerce at issue. Unlike food, real property most definitely does not move among the states. Housing markets are distinctly local things – which is why the price of housing is very different between San Francisco and Dubuque.
                      -That decidedly local character of housing markets is a solid empirical basis for doubting your claim that evictions mean people would en masse move to other states. If you could easily avoid San Francisco’s high housing prices by moving to another state (or even simply to northern California), San Francisco wouldn’t have high housing prices. That it does proves the local nature of the good, because it shows that supply and demand in one place have no relationship to supply and demand in another.
                      -Even if some small number of people did move, there’s no reason to believe it would have any substantial effect. You need to do more than just say it will. Where’s your evidence any significant number of people would move across state lines? (Note: the substantiality of the effect must be expressed in terms of the price in the market – ie, change in monthly rent).
                      -And just because it affects a local market in another state, doesn’t suddenly mean those local markets are ‘interstate commerce’. It has to, in the aggregate, substantially affect *interstate commerce*, not any commerce. So even if there was, by some freak chance, a substantial effect on another local market, that’s not enough to trigger the commerce clause.

                      Katzenbach’s reference to Congress’s hearings are useful because it provided factual evidence on the interstate market in question, and the impact discrimination had on it. You can’t just assume this stuff. You need to have enough evidence to reasonably believe there is an interstate market, and that there’s a substantial effect on that interstate market (at least in the aggregate). There’s no evidence of either of those for housing. (And then you need to have a broad regulatory scheme which regulates that *market*).

                      Lopez is pretty clear – a tenuous link to some economic effect that might touch interstate commerce is not enough, especially in the absence of a broader regulatory scheme of the target interstate market. SCOTUS distinguished Raich from Lopez in exactly this manner.

                    8. Title II is not a full scheme of a regulation of interstate commerce of which the prohibition on discrimination is just one part. Title II is the prohibition [42 U.S.C. §2000a (a)] with the rest of 42 U.S.C. §2000 being definitional and ancillary in support of section (a).

                      As to the rest of your argument about whether there is interstate commerce or an affect on interstate commerce, Congress need only a rational basis for believing that evictions, in the aggregate, would affect prices in another state. A rational basis does not require hearings or evidence.

                      You are right that Lopez rejected a tenuous link to an economic effect (i.e., did not apply rational basis review), but Raich was distinguished from Lopez by saying rational-basis review applies to a regulation of economic activity (a ban on gun possession is not a regulation of economic activity).

                    9. Not answering the most important questions. What is the intended economic effect? What evidence is there that there’s an interstate market in housing at all? What evidence is there that evictions would cause a substantial effect on house prices? How do you square the decidedly local character of real estate markets with your claims of an interstate market.

                      Rational basis means there’s evidence to suggest the relationships you imply, not just an assertion one exists. Show me the money!

                    10. And you’re characterizing Raich improperly again – I quoted Raich. They distinguished it on the existence of a broader economic regulatory scheme that would be frustrated if plaintiffs and those similarly situated prevailed. Note that an economic regulatory scheme necessarily has an economic aim – in that case, reducing the supply of illegal substances in the black market.

                      And Title II could well be seen (and have been seen) as part of a broader economic regulatory scheme to promote the free flow of goods across the US. SCOTUS merely identified it was part of one – it didn’t expressly lay out of the full contours of that regime or how they perceived it in their decision in Katzenbach. They certainly do write a lot about the flow of commerce, however. The relevant part for Commerce Clause jurisprudence is that they do situate it as part of a broad economic regulatory scheme, not precisely what that scheme is, and they explicitly do so. I quoted them doing so.

                      The difference in Lopez is that it was not part of some broad economic regulatory scheme, as Raich made explicit. And you can tell because the purpose is not economic at all. Similarly, the eviction moratorium’s purpose is not economic, and it is not part of some broader economic regulatory scheme. Ergo, Lopez is controlling here.

                    11. From FCC v. Beach Communications

                      On rational-basis review, […] a legislative choice is not subject to courtroom factfinding, and may be based on rational speculation unsupported by evidence or empirical data.

                      Similarly, the eviction moratorium’s purpose is not economic.

                      That’s what Judge Barker said. I think he got it wrong and Somin got it right.

    3. But, perhaps you think differently.

      Consider this Stephen. Could Trump declare “sanctuary cities” illegal under Constitution and your interpretation of the commerce clause, since they cause distortions in the moving patterns of people, and that affects interstate commerce?

  14. A few more thoughts.

    1. Upon further consideration, “Eviction” is really a police power. Consider that often officers of the law are required to enforce the eviction process. It is unseemly for the federal government to stop a locality from enforcing its police powers, especially in an area that is entirely within a state. Police powers are an area typically reserved to the state.

    2. Under the “expansive” reading of the commerce clause being promoted, “National Rent Control” laws or “National Rent Control Bans” would be entirely legal, superseding any state laws. In fact, a law wouldn’t even be required necessarily, just an order from HUD.

    3. Many other housing and zoning choices, likewise, could simply be superseded by federal law or order, because they implicate interstate commerce in some way. It’s hard to see what wouldn’t be affected.

    1. 1) That’s what Judge Baker said. Somin makes a persuasive counter argument.

      2) Correct on the ability of Congress to pass such laws (not sure about HUD, absent a statute).

      3) It depends on whether these housing and zoning choices regulate economic activity. Federal law prohibits discrimination in who you rent to, which is a permissible regulation of economic activity.

      1. 3) All zoning affects economic activity. Virtually all housing choices regulate economic activity in one way or another. Can you think of a single housing or zoning choice that cannot, in some way, be viewed to somehow affect economic activity?

        1. Of course they affect economic activity. But, are they necessarily regulations of economic activity. Do you have an example you think should be beyond the reach of Congress?

          1. You’ve turned the question back to me, without answering it.

            Can you think of ANY housing or zoning regulation that would not fall under your expansive reading of the commerce clause. Just one.

            1. A federal requirement that houses be painted red would not be a regulation of economic activity, and therefore beyond the reach of Congress.

              1. Are you sure? That would affect the sale of red paint in aggregate, increasing the sale of red paint throughout the nation, and thus be an economic activity. Correct?

                1. You continue to conflate a regulation of economic activity and a regulation that affects economic activity.

                  1. Painting a house is an economic activity. Painters need to be paid, paint needs to be paid for. If you paint the house yourself, you’re not hiring painters, which affects the interstate market.

                    What’s the difference in economic activity between growing wheat for your own personal consumption and painting a house red?

                    See the issues?

                    1. By that argument, possessing a gun is an economic activity. But, we know it isn’t per Lopez. In contrast as Somin pointed out, eviction is the termination of an economic relationship, not unlike being fired from your job. And, the federal government does restrict when you can be fired.

                    2. Technically, eviction isn’t the termination of an economic relationship. It’s the normal consequence of the economic relationship having been terminated.

                      The dictate in question doesn’t prevent you from terminating the lease of a delinquent tenant. It prevents you from kicking them out of the apartment even if their lease is terminated.

                      The terms of the moratorium, so far as I can see, would even apply to squatters.

                      I suppose landlords aren’t terminating these leases, not because the order prevents them, but because it would end the tenant’s obligation to pay rent, while still not permitting an eviction.

                      I will say that, after looking at the terms of this order, and the paper you’re required to file under penalty of perjury to take advantage of it, there must now be millions upon millions of Americans who could be convicted of felony perjury without even the slightest difficulty.

                    3. “By that argument, possessing a gun is an economic activity. But, we know it isn’t per Lopez”

                      Actually, we don’t know that via Lopez. Lopez didn’t argue that in particular. The arguments were somewhat different. However, we do know there are quite a number of federal regulations on firearms and possession of them. (Not to mention purchase).

                      But painting a house is clearly an economic activity. If it wasn’t, federal minimum wage laws wouldn’t apply.

                    4. Just a point: Lopez didn’t rule that the posession of the gun was beyond the reason of Congress via the commerce clause.

                      They ruled that Congress hadn’t bothered to include such a finding.

                      Congress reenacted the law WITH a commerce clause finding, but it has subsequently been protected from review by carefully avoiding creating any test cases.

                      IOW, Lopez was a “magic words” case, Congress got slapped down for failing to recite them properly.

                    5. In Raich, the Court said “The [Gun Free School Zones] Act did not regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity.” The latter is a jurisdictional hook (Brett’s “magic words”) that automatically saves a law facially, but might not in specific applications.

                      I agree that a requirement to paint houses would be a regulation of economic activity, but requiring them top be red isn’t.

                    6. Josh,

                      And I guarantee you, if it ever came up in a court argument, the argument would be “Well, it’s painting, isn’t it? It’s an economic activity. If the color is defined as different from the existing color, it requires painting, which is an economic activity.

                    7. What does it tell you, AL, that you need to guarantee fictional overreach in order to prove your thesis?

                    8. It tells us that we require analogies, because you’re incapable of admitting any existing policy you even vaguely approve of is an over-reach.

                  2. What does it tell you, Sarcastro, that Josh had to admit that even his previous statement “A federal requirement that houses be painted red ” would actually be legal, because painting is an economic activity….

                    1. I didn’t say a requirement that houses be painted red would pass muster even though I agree painting is an economic activity.

    2. You mean open up an entirely new way for congresspeople to get in the way, and their spouses’ investment IQs magically go up even more?

  15. So, my understanding is that the eviction moratorium punishes landlords from going to court to enforce their right. Is there a constitutional problem where this prohibits ‘petitioning for a redress of grievances’?

    1. According to a press release from the US Attorney for Massachusetts (who does not feel bound by the Texas court’s decision in the absence of a nationwide injunction) it is legal to start eviction proceedings but not legal to evict. https://www.justice.gov/usao-ma/pr/us-attorney-s-office-reminds-public-cdc-eviction-moratorium-order

      1. So, they can petition, but they can’t actually get their grievance redressed? (Doesn’t this make eviction proceedings non-judiciable because of lack of remedy?)

        Now I’m curious how this interpretation squares with the economic activity or not decision. Doesn’t obtaining the right to evict deal with the substantive economic relation (ergo, terminate it), and thus the inability to actually evict is no longer economic, but merely a policing issue? (ie, the only thing economic here was the housing contract, which presumably the eviction proceedings terminate, and the moratorium merely prevents the enforcement of the new contract status).

        1. sorry, that should be non-justiciable. Whoops.

    2. Eagerly awaiting the passage of the federal Landlord Recovery Act, where the federal government will reimburse landlords for any missed rent payments during the pandemic.

      I’m certain Mrs. CBRE, AKA Nancy Pelosi already has the recovery bill drafted…

  16. As a non-lawyer, small-“c” conservative, Jesuit-educated engineer, who is interested in freedom and justice and the Constitution, I must say that the notion that rent is a matter of interstate commerce is ridiculous. It is stateists declaring everything a matter of interstate commerce so the federal government can regulate, control, everything.

    Rent control is a taking. Eviction moratoria are takings. Let’s pray we get back to a congress and executive and SCOTUS who will get us back on track constitutionally, and reject all of this nonsense.

    1. To believe this would require a ton of legal weed (if you are concerned about the law that is) and I really mean a large amount of legal weed…

  17. “In my view, the judges in Brown and Chambless, fail to take sufficient account of the fact that the government’s interpretation of the relevant authorizing statute would give the CDC the power to suppress almost any human activity at any time. ”

    Yea, this “power” is unconstitutional. The legal talking heads really beclown themselves spinning up how “legal” it is to completely suspend the constitution.

  18. Serious question: if the CDC can modify state eviction regulations unilaterally without limit, why can’t they simply outlaw the sale of products whose only function is to inflict lung cancer on its users? Why not simply, with a stroke of the Executive branch’s pen outlaw the sale of cigarettes, cigars, smokeless tobacco and all other tobacco products?

    Seriously, what is the limit – how far is too far?

    1. The CDC’s authority is bounded by the need to link the order to an infectious disease. Maybe the FDA could issue such an order after notice and comment, but they’re waiting until all the smokers die or stop voting.

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