Let’s cut to the chase—President Joe Biden agrees with the Texas Public Policy Foundation. The CDC’s evictions moratorium is unlawful and unconstitutional. That didn’t stop him from extending it, however.
“Amid pressure from congressional liberals including Rep. Cori Bush (D-Mo.), who demonstrated by sleeping outside of the U.S. Capitol for four nights, the Biden administration reversed course Tuesday and moved to effectively extend a pandemic-era eviction moratorium,” the Washington Post reports. “Just the day before, a top administration official had said they had looked hard and hadn’t found a legal avenue to do such a thing.”
That’s exactly what we argued before a federal judge in Texas—there’s no constitutional basis for the eviction moratorium. That judge agreed.
“The federal government cannot say that it has ever before invoked its power over interstate commerce to impose a residential eviction moratorium,” Judge J. Campbell Barker pointed out in his ruling in February. “It did not do so during the deadly Spanish Flu pandemic. Nor did it invoke such a power during the exigencies of the Great Depression. The federal government has not claimed such a power at any point during our Nation’s history until last year.”
He concluded, “Although the COVID-19 pandemic persists, so does the Constitution.”
In other words, there are real, meaningful, limits to federal power under our Constitution. And pandemic or not, federal courts have a “virtually unflagging obligation” to impose those limits in cases brought before them, as Judge Barker ruled.
When the issue came up before the U.S. Supreme Court, Justice Brett Kavanaugh voted with the liberal bloc to allow the CDC moratorium to stand. He didn’t rule that it was proper or even legal; just that it was temporary, and Congress was working on a fix (rental assistance).
“Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds,” the stay should remain in place, Kavanaugh wrote.
Biden’s new extension, which lasts until Oct. 3, applies to counties with “substantial and high levels of community transmission” of COVID-19 and its Delta variant. That amounts to about 90% of the nation.
The grandstanding of Congress’ progressive “Squad” members such as Rep. Bush distracts from the real issue—property owners like our clients are harmed by the evictions moratorium. One couple was forced to sell their income properties—which were essentially their retirement plan—because they could no longer take the risk and the losses the evictions ban caused.
Even as he announced the extension, President Biden acknowledged its fatal flaw.
“The bulk of the constitutional scholars say it’s not likely to pass constitutional muster,” he said. “But at a minimum, 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 in the rent and don’t have the money.”
At least the Constitution gets a nod—this time.