This outcome was widely expected among legal commentators. In fact, it was expected by President Biden himself. That was because the revised moratorium was virtually identical to the original version first adopted by the Trump Administration. A majority of justices had already signaled they believed that the original moratorium was unconstitutional.
However, the Court (ill-advisedly) did not strike it down at the time because it was about to expire anyway. (As our friend Ilya Shapiro said at the time: “What’s a little Constitution between friends?”). Rather, the Court went out of its way to hint that the eviction moratorium should not be extended without Congressional authorization, because if it were, the Court would be forced to strike it down.
Once the original eviction moratorium expired, President Biden resisted extending it, saying that he did not have the power to do so. But after intense political pressure, he relented and allowed the CDC to enact a new moratorium with slight tweaks to give the pretense that the new and improved moratorium might actually survive judicial review.
Even as it was enacted, President Biden admitted that “the bulk of constitutional scholarship says that it’s not likely to pass constitutional muster.” He even confessed that his real reason for enacting it was because “by the time it gets litigated, it will probably give some additional time while we’re getting that $45 billion out to people who are, in fact, behind on rent and don’t have the money.”
This type of conduct by a President of the United States – who is charged with preserving, protecting, and defending the Constitution – is dangerous and inexcusable. The constitutionality of government action is not a game to be played deftly and under false pretenses. It is a bedrock expectation in our free nation. For a President to openly flout the Constitution, no matter how good his intentions may be, severely undermines our democratic institutions and the Rule of Law.
So why was the eviction moratorium unconstitutional? Primarily because it violates the Constitution’s required separation of powers between the three branches of government. It is the job of Congress to pass laws. It is the job of executive branch agencies, such as the CDC, to enforce those laws – not to create them. For any enforcement action the CDC takes, it must have the authority to do so from some provision of legislation duly passed by Congress.
But that’s not what happened here. Rather than enforcing an eviction moratorium that was passed by Congress, the CDC enacted its own moratorium. When asked what congressionally-approved authority it had to do so, the CDC pointed to a provision of the Public Health Service Act, which allows the CDC to enact regulations to prevent the interstate spread of communicable diseases. The CDC argued that the moratorium would accomplish this goal by preventing potentially infected persons from being evicted, moving to new states, and thus spreading COVID across state lines.
Unsurprisingly, the Supreme Court was not convinced. As the Court pointed out, the very legislation the CDC pointed to makes clear that Congress intended to authorize the CDC to take measures directly targeted at preventing the interstate spread of diseases by identifying, isolating, and destroying the disease itself. Congress provided examples of such measures: inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles. To argue that the CDC could use this limited grant of authority to enact any regulations it wished, no matter how broad and sweeping, so long as it theoretically may have some indirect effect on the spread of a disease, would be to grant the CDC near-dictatorial power during any pandemic.
This is no small matter. While some may believe that it doesn’t matter which branch of government takes the lead on issues like an eviction moratorium, that view could not be more wrong. Congress is made up of elected officials accountable to their constituents. When its members vote on legislation affecting the rights of millions of Americans, they do so at their own peril. They know that if they abuse that power, they might be looking for a new job. In contrast, executive branch agencies are made up of unelected political appointees and bureaucrats with no similar need to worry about the consequences of abusing their power.
Moreover, even if Congress had delegated such breathtaking power to the CDC, there is good reason to believe that legislation would also be unconstitutional. Even Congress may not have the authority to inflict such serious infringements on property rights (especially without compensation) based solely on some indirect, theoretical benefit that may come in the form of reduced disease transmission.
Nobody wants to see anyone evicted from their home under any circumstances. But the right to exclude is a basic property right. It is fundamental to encouraging Americans to invest in property. If landlords (most of whom are working-class people just like their tenants) knew that at any moment, for any reason, the government could force them to allow squatters on their property, what reasonable person would invest in and provide rental properties to their communities to begin with?
Rather than a top-down, one-size-fits-all approach to evictions, we should leave those decisions to individual Americans and the relevant laws of their states. Some landlords may be willing to wait and let their renters catch up. Others may not be in the financial position to do so. But it’s not the government’s job to decide who can and should bear each and every financial burden caused by the pandemic.
More importantly, Americans should expect their Presidents to uphold the Constitution and the Rule of Law regardless of which party they belong to or how good their intentions may be. Opposing the abuse of power only when the other side does it can only lead to a vicious cycle of never-ending assaults on our democratic institutions.