Earlier this week, the Biden CDC issued a nationwide eviction moratorium ordering a temporary halt on evictions in areas that have “heightened levels of community transmission”, which is almost 90% of the country.
The rationale behind the moratorium is that an increase in eviction would also cause a rise in COVID transmission cases across the country. Landlords who defy this new order by the CDC could face severe legal consequences, including fines and imprisonment.
The CDC issues the order after progressives pressed President Biden to extend the moratorium issued last year after the administration initially said they did not have the legal authority to do so. Representatives Cori Bush (D-MO) and Alexandra Ocasio-Cortez (D-NY) led protests at the steps of the Capitol, a call that was also followed by Speaker Nancy Pelosi (D-CA) and Senate Majority Leader Chuck Schumer (D-NY).
After getting panned by the left for not extending the moratorium, the Biden administration caved and issued the moratorium. However, there are a couple of little details on Biden’s moratorium: it is both arbitrary and illegal.
The public health outlook today is not the same as when the moratorium was first passed
Initially, the federal government had issued its temporary halts on evictions amid the heights of the COVID crisis, when the country was struggling with both high death rates caused by the disease and a crippling economic downturn created by the lockdowns imposed to curb the spread of the virus. However, the eviction moratorium issued this week finds a very different America than that of 2020.
When the eviction moratoriums were first implemented in March 2020, through the CARES Act, the country was just a few weeks from a 2,190 death rate average during April as the country (and the world) was trying to grapple with a virus that nobody understood, the unemployment rate skyrocketed to almost 15% (a 10 point increase) in less than a month.
A few months after the order was extended in September 2021, the country would be facing a dire COVID panorama, with the country registering a record high of 3,307 average daily deaths in January 2020.
Today, the scenario is a very different one from 2020. While cases are rising, the death rate is less than 500, and almost half of the country is already fully vaccinated. Furthermore, the unemployment rate has fallen to 5.9% as Americans go back to work and recover from the economic losses caused by the COVID pandemic.
The economic effects of another eviction moratorium will be hard felt across the country. Small landlords (who own 40% of rental units in the country) have struggled to collect rent payments for over a year due to the moratoriums, and while the Government has allocated billions of dollars in relief, only a very tiny fraction of that amount has actually reached the pockets of landlords.
The government already has one silver bullet in its arsenal against the pandemic: the vaccines. It feels quite an overstretch for a government agency to prevent small landlords to enforce their property rights for over a year in the name of public health. This was arguably true in the heights of the COVID crisis, it is even more true at a time when death rates are low and vaccines are amply available.
The eviction moratorium is also (most likely) illegal
Even if there are some who could argue that enforcing the eviction moratorium is both helpful and appropriate to fight the COVID at this precise time, it is becoming increasingly clear that such an order is just simply illegal. This is not being said only by conservative pundits at the National Review or Republican lawmakers at town halls, it is being argued by liberal media outlets like The Washington Post, some justices in the Supreme Court, and President Biden himself.
Despite the move earning praise in progressive circles, the decision has been largely considered to have dubious legal standing. The editorial board of the Washington Post published a piece saying that Biden’s decision might bring some short term relief to tenants, but “at the expense of the rule of law” highlighting that the law from which the CDC is claiming this authority does not allow them to “freeze the entire rental housing market month after month in nearly the entire country”.
Justice Brett Kavanaugh, who voted to keep the moratoriums in June, already warned the executive branch that issuing moratoriums that the CDC had “exceeded its existing statutory authority” by issuing the moratoriums and that he had only voted to keep the orders only to give more time for the agencies to distribute the relief funds for tenants in a more orderly way. However, he clearly warned that a new moratorium would need congressional approval, a threshold that Biden’s new moratorium clearly does not follow.
Even Biden has stated that he has serious doubts about the constitutionality of his decision, with him admitting at a press conference that not only was the present moratorium deemed not constitutional by the courts, but that “the bulk of constitutional scholarship agree that (the ban) it’s not likely to pass constitutional muster”.
The government has now openly defied a piece of advice by the Court and issued a wide-reaching order that limits property rights of millions of Americans via executive fiat. While the moratorium might very well be struck down by the courts, it is very worrying that the President is willing to issue an order with extremely dubious legal standing in order to avoid the wrath of the most progressive wing of his party.