When I first heard about this I was looking at Instagram. I can’t recall the exact headline, but it was something along the lines of “The CDC has declared the inability to pay rent a public health crisis”. I scrolled right past, assuming it was satire. But a few scrolls later, lo and behold, I saw the same story. This time I checked the account that posted it, and it was a mainstream media outlet. I clicked the link in bio as requested, and began reading. “This has been going on for how long?” I wondered as my eyes scrambled down the lines of text, “ On what authority? Has the Supreme Court ruled on this?”
Well, the answer to that first question is a bit more complicated than you might think.
It started with the CARES act on March 27th, 2020, a two trillion dollar spending bill passed in response to the COVID-19 pandemic. This included loans to small businesses, relief checks, extra funding for hospitals, and money to prop up airlines and similar industries (Source 1). Most relevantly, however, it included a provision designed to protect tenants from eviction due to not paying rent. This is where eyebrows should be raised. Congress stepping in to prevent hitherto lawful evictions is pushing the limits of governmental authority at the very least. However, under the CARES Act, this provision only applied to renters and landlords who were associated with the federal government in some capacity, be it through funding or involvement in government agencies. Furthermore, these requirements had no method of enforcement, other than potentially revoking federal funds, but generally, noncompliance was not penalized. More than anything, this was a suggestion. Eyebrows go back down. After all, we were in the middle of an economic crisis caused by mandatory lockdowns, Congress covering its own for damages suffered as a result is understandable even to the most libertarian-minded observers. Even if it’s a more appropriate job for localities, the point is that this Act was limited in scope, and arguable in its legitimacy. It was not an egregious overstep.
Under Trump, this moratorium was set to end in July of 2020, and evictions were only permitted 30 days afterward. Overall, this temporary and bounded pause on evictions was meant to only last a few months, but of course, temporary government measures are never temporary. This is where things get nuts.
With the duration of the original bill expired, the executive branch, as it so often does, took it upon itself to act in the legislative branch’s stead and keep the moratorium going. Eyebrows go up. In September of 2020, the CDC implemented another eviction moratorium. Eyebrows go higher. This moratorium doesn't just apply to federally related properties, but to any and all tenants who had exhausted all other means of government assistance and were at risk of homelessness or overcrowding. Eyebrows go straight to the top. While the moratorium does allow for a landlord to charge penalty fees for unpaid rent, the tenant has no reason to pay them, after all, what’re they gonna do, evict them? This order is also enforced, noncompliance can be punished with significant fines.
As you may have noticed, this moratorium is different from the original in a few important ways. First and foremost being that while the CARES act was passed using the widely-defined constitutional authority of Congress, this moratorium has been arbitrarily imposed by the CDC. Yes, the Center for Disease Control CDC is imposing eviction bans. Not only is this completely outside of the purview of the organization, this action would still be illegal even if it wasn’t. Contrary to popular opinion, claiming a public health crisis doesn’t render the constitution obsolete, and this order is a flagrant affront to basic property rights.
The Supreme Court implied the same sentiment, but due to the approaching end date of the moratorium decided it wasn’t worth litigating, sidestepping the issue in its now typical fashion. This would have been the end of that, but President Bien decided to extend the moratorium yet again at the last minute. Even he admitted he doubts the legality of the order, but he decided to do it anyway. In one of the most politically cynical moves I’ve ever witnessed, he explained that the order would still be in effect while the justice system worked to condemn it (Source 2). Knowingly violating the constitution just to squeak out a few months of unconstitutional power? Yikes. Pretty sure Presidents take an oath when they enter office to not do this sort of thing….
Despite Biden being open in his intentions and motives, the challenges brought to stay the effects of the extension in light of Biden's strategy have largely been dismissed by circuit courts. They’ve opted instead to allow the order to operate unhindered while other courts slowly digest the issue in the meantime.
The worst part is that this massive breach in both morality and legality in terms of means was not even for justified ends. I know that we’re all supposed to imagine all landlords as evil members of the devilish Marxian bourgeoisie, squeezing elderly tenants for pennies while they sit on mountains of gold, but that’s not really the case. A sizable number of landlords make a modest living and can’t survive on zero income for very long (Source 3). So one would think that empathetic and spending-happy President Biden would compensate landlords for the rent their tenants are exempt from paying. Unfortunately, one would be very wrong, no such provision to the order exists. Landlords are left high and dry.
This protracted moratorium will most likely lead to smaller landlords being forced to sell their properties, leaving affected renters, who were supposed to be helped by the order, in a lurch. The only thing the moratorium does in this instance is drag landlords down with them. In the macro, this will likely decrease the availability of rental properties writ large, as no one of sane mind would continue renting a property they cannot get rent for. As a result, this decreased supply will lead to higher rental prices overall, making the affordable housing shortage worse, and harming tenants in the long term as well as the short (Source 4).
All potential counterarguments fail in light of this counterproductivity. Attempted justification merely reveals surface-level empathy for specific tenants in the short term, but also reveals a willingness to damn tenants overall in the long term. Not to mention those evil landlords getting their rights trampled and livelihoods destroyed as a result of the order.
The eviction moratorium imposed by the Biden-backed CDC is a shortsighted, unfair, counterproductive, and a blatantly unconstitutional violation of basic property rights. It’s simply egregious.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
(Since the time of writing this article, the Supreme Court has taken action to block Biden’s extension, though his strategy worked as intended. Currently, Biden is still urging Congress to extend the moratorium, which would also be unconstitutional, so the situation is still volatile.)
Source 0 (General info): https://crsreports.congress.gov/product/pdf/IN/IN11516
Source 1: https://bench.co/blog/operations/cares-act/
Source 4. https://www.augustapreciousmetals.com/market-news/eviction-moratorium-fallout/
Not advocating for "unconstitutional" moratoriums but even without the CDC's moratorium the eviction crisis is going to be egregious