Eviction Moratoria and Nondelegation

Thank goodness for small blessings in a public health emergency?


Early in our current pandemic, I noted that historically public health crises had been critical moments for the expansion of the administrative state and the loosening of strictures on the excessive delegation of policymaking powers to expert and not-so-expert executive branch officials. I concluded that post:

There is no precedent for the measures that the government is taking now, and the constitutional backdrop has changed since courts first confronted these issues over a century ago. But historically public health emergencies have been moments in which courts have elaborated on the importance of giving government officials a free hand to respond to exigent circumstances as they think best and on the flexibility of constitutional limitations on government power.

Unfortunately, things have not generally been that different this time around. Executive branch officials in both the state and federal governments have grabbed extraordinary new powers over the course of this pandemic. Legislatures and judges at both the state and federal level have mostly let them do it.

We should be grateful for small blessings, and maybe the fate of the eviction moratorium is one. The CDC during the Trump administration made a legally outrageous power grab in issuing a nationwide, blanket eviction moratorium, and the Biden administration has been content to follow along. A bare majority of the justices of the Supreme Court appear unwilling to play along, and the Biden administration seems to have gotten the message—much to Nancy Pelosi's chagrin. Despite Democratic control of the lawmaking branch of the government, the Speaker of the House would still seem to prefer that lawmaking be done by unelected bureaucrats. Perhaps the Biden administration will eventually give in to the pressure to do what the Court has pretty clearly signaled that it cannot lawfully do. If so, the silver lining might be that Justice Gorsuch would get the chance to write a nondelegation opinion for the Court.

There are plenty of constitutional and policy debates to be had on whether Congress could or should pass a statute creating an eviction moratorium, but is it really too much to ask that those debates occur in Congress and that we not add abuses of excessive delegation of discretionary authority to the mix?

UPDATE: Whelp, so much for that. The small blessings just got smaller. Bring on the Supreme Court slap down.

NEXT: 7th Cir. Says: No Right for Students to Attend Public University Without Being Vaccinated

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  1. The eviction moratorium was an obvious taking under 5A. the claim that the rent is remains due and therefore not a taking flies in the face of well known economic reality since collectibility approaches zero once the rent is past due by more than a couple of months.

    The defect was not cured with Dec 2020 legislation since the rent assistance was being paid to the deliquent tenant and not the landlord

    1. The last point is in reality, the eviction moratorium reduced the spread of Covid by something close to zero.

    2. The moratorium likely had the opposite effect on evictions as well, as sans moratorium most people would have simply continued to pay rent (with all the stimulus and unemployment supplements they were receiving) or otherwise worked out some other arrangement with the landlord to prevent eviction

      Of course because of the moratorium everyone just stopped paying rent cold turkey, and are now being evicted because of it. I bet they will have a hard time finding a new place now too

      1. “I bet they will have a hard time finding a new place now too”

        I doubt that — there are going to be a lot of vacant apartments not producing revenue and exactly whom do people think they can be rented to?

        What I think will happen is that there will be zero money spent on maintenance and that’s going to be the long term consequence of this. Yes, some properties will be lost to foreclosure but the banks are going to want to do something with them and we could have a major consolidation of ownership, but the new owners are going to want the revenue as well.

        This is going to get ugly, but I don’t think the schmucks who partied with their rent money are going to be the ones paying the price. And don’t forget that many of them were getting MORE per week than when they had been working.

        1. >I don’t think the schmucks who partied with their rent money are going to be the ones paying the price.

          Just like their tuition money.

          1. There’s a reason that “Spring Break” came just after the second payment of student loans.

        2. Given eviction moratoriums and rent control and a whole host of other regulations on land lords, a smart owner with an empty building would convert to condominiums or just walk away from the building.

  2. When the government enacts a “temporary” measure to address a “crisis”, does the government ever think about what’s going to happen when the temporary measure expires?

    1. Does the government ever think — EVER?!?

      Enough said???

      1. “Does the government ever think — EVER?!?”

        Why do anti-social malcontents, anti-government cranks, and disaffected conservatives hate America?

        1. “Why do anti-social malcontents, anti-government cranks, and disaffected Liberals hate America?”

          Fixed it for you.

  3. I visited Moratoria once. I almost got to meet the President of the country, but he was taking a nap.

  4. In 68 and 69, the Hong Kong flu pandemic killed 100k+ Americans, which as a percentage of the population was reasonably close to the seasonal or annual COVID numbers (which are deaths “with COVID” as Dr. Birx put it).

    At that time, it seems there wasn’t much hysteria, nor much of government taking the opportunity to assume new illegitimate powers and effect increased centralization and control, and printing trillions of dollars because flu.

    Instead, the hippies and boomers had a music festival known as Woodstock in upstate NY. Holding the biggest music festival ever in the middle of a pandemic may be taking things a bit far. But on the whole, I’d have to say I agree more with the approach back then, compared to today.

    1. In 68 and 69, the Hong Kong flu pandemic killed 100k+ Americans, which as a percentage of the population was reasonably close to the seasonal or annual COVID numbers

      Math is apparently not one of your specialties.

      1. 2020 COVID deaths = 345,000 / 334M population = 0.10%

        100,000 Hong Kong flu deaths / 199M population (census.gov) = 0.05%

        A bit more of a spread than I thought, but still very reasonably comparable. Also consider that a Hong Kong flu vaccine was developed and 9 million doses manufactured only 4 months into the pandemic.

        1. First, I can’t find an in depth look at the death estimates for the Hong Kong flu, but it appears that for a long time the CDC listed the death toll for the Hong Kong flu as 33,800, and then increased it to 100,000 after concluding there had been a severe undercount. So part of the reason why there wasn’t a bigger reaction to 100,000 deaths is that people didn’t know they were occurring.

          Covid-19 deaths were undercounted in the United States in the early days of the pandemic, but authorities picked up on this pretty quickly because of the excess death numbers.

          Second, you are doing an apples to oranges comparison. The Hong Kong flu deaths tell you what the disease is capable of doing in the absence of serious countermeasures. The Covid-19 deaths tell you want the disease is capable of doing in spite of fairly intensive measures to control the disease.

          1. Appreciate your points.

            “The Hong Kong flu deaths tell you what the disease is capable of doing in the absence of serious countermeasures. The Covid-19 deaths tell you want the disease is capable of doing in spite of fairly intensive measures to control the disease.”

            I disagree. As I mentioned, 4 months into the Hong Kong flu pandemic, a vaccine was not only developed but 9 million doses were manufactured. So I would say the countermeasures were far stronger in that case.

            On the other hand, I never bought the idea that shutting down small businesses, garden stores, gyms, and churches, while leaving open all the big box stores and grocery stores where everyone continued to crowd together, not to mention all the liquor stores, fast food and marijuana shops, did anything to benefit public health with regard to the pandemic.

  5. From where in the Constitution would Congress derive the authority to enact a moratorium? As for the CDC’s authority…the 6th Circuit resoundingly answered that question in Tiger Lily LLC v HUD

    1. General welfare
      Interstate commerce
      the possibilities are endless

      1. 1) No such power. Read Article 1, Section 8 opening carefully. The power is to collect money to provide for the defense and welfare.

        2) Nope. The housing market is not an interstate commerce issue.

    2. The housing market is clearly interstate commerce under Wickard and Raich, and this is not a close question.

      Now if you are one of those idiots who don’t accept Supreme Court decisions, well, go somewhere else.

      1. Eviction is an exercise of state police power. Can Congress prevent a state from exercising its powers?

        1. Sure, as long as Congress (1) doesn’t commandeer state resources and (2) has some sort of enumerated power to do it (which Wickard/Raich supplies).

          1. I don’t think evictions, which are not only based in(state) real estate law, but are state judicial proceedings are “clearly” part of interstate commerce. The states are the sovereign owners of real estate, and nothing in the Constitution gives Congress any authority to in any way regulate it.

            1. That’s silliness that has no support in any established legal doctrine.

              Cite some cases holding that.

              1. “Cite some cases holding that.”

                Like from an earlier attempt by an executive branch federal agency to impose an eviction moratorium? Sure, I’ve got binders full of such cases.

                1. Something analogous or which sets out the doctrine will do.

          2. Um, no.

            The price of my house in Colorado has no effect on the price of a house in California.

            1. That’s not the test of whether something is interstate commerce.

              Under Wickard and Raich, we aggregate the entire sector.

              1. “Under Wickard and Raich, we aggregate the entire sector.”

                The idea of extending Wickard to rental housing requires such mental gymnastics that the resulting steaming pile might begin to make Wickard look reasonable.

                Wickard said that the wheat grown had the potential to effect interstate commerce because the existence of that wheat might have alleviated the need for Filburn to go to the interstate market to buy wheat. His production of the wheat at home in Ohio might have a supply-based impact (interference) on the price of wheat another farmer in Indiana might be able to command. Wickard also relied on an existing scheme of wheat allotments.

                In what way can rental housing be stretched to that absurd degree? If someone gets evicted in California, that has a potential effect on rental housing in Nevada? How so? Are we to suppose that the evicted tenants will head for the nearest state line to “interfere” with the rental housing market there?

                Raich was a defense of the Controlled Substances Act and an application of the Supremacy Clause. Interstate commerce underpins the CSA. The Court found that the CSA pre-empted CA law. What existing law pre-empts state landlord-tenant law in this way? (The Civil Rights Act of 1968 and its Fair Housing Act of 1988 corollary provide no cover. They do not protect non-payment.)

                Limiting principles. We must have limiting principles.

                1. It’s not “extending” Wickard. Wickard is a general test. We don’t have to ask libertarians permission every time we apply a Supreme Court case to a new set of facts.

                  Yes, Wickard is very bad in the limiting principles department. We know this. It’s why you don’t like Wickard. Indeed, it’s why I don’t like Wickard.

                  But that’s the law. Few limiting principles. It doesn’t stop being the law just because we have a slightly new set of facts. We saw that in Raich.

  6. Per latest news, the eviction moratorium is returning. Wonder what the SC will make of it, given that last time Kavanaugh drew a line of sorts in the sand.

    1. I gather the CDC is concocting some excuse or rational they hope at least one of the Supremes will buy.

  7. As I recall, ages ago the DC Circuit ruled (pre-DC home rule, when the DC Circuit was in effect the highest court of the District of Columbia) that the common law right of a landlord to use self-help to evict a tenant who was violating his lease was abrogated by statutes that provided a judicial procedure for eviction: The landlord MUST use the judicial procedure and was barred from using self-help. Regarding the eviction moratorium, the DCApp (now the highest local court in DC) held that it was OK because it only temporarily delayed resort to Landlord-Tenant Court. I hung up my law license several years ago, but I wonder what would have happened if landlords, faced with the “eviction moratorium” that prevented them from using a judicial remedy, had resorted to their common law right of self-help?

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