Biden’s eviction ban is illegal, unfair, and economically destructive

Biden’s eviction ban is illegal, unfair, and economically destructive

The economy is growing, help-wanted signs are everywhere, and vaccines protect against COVID-19. So there’s no reason for federal disease-control officials to block evictions of people who don’t pay their rent. People can find a job to pay their rent, and even if they don’t, they can avoid COVID just by getting vaccinated.

But on August 3, the Centers for Disease Control restricted evictions, in the name of fighting COVID. It banned most evictions in 90% of the country, even though President Biden admitted the ban is probably illegal, because the “bulk of constitutional scholarship says that it’s not likely to pass constitutional muster.”

In June, a majority of the Supreme Court said it would be illegal for the CDC to renew its past restrictions on evictions. As Justice Kavanaugh explained, banning evictions is beyond the CDC’s “existing statutory authority.”

But the Biden administration ignored the Supreme Court, and renewed the ban in 90% of the country. Banning evictions is a bad idea now, and the CDC never had the authority to do it in the first place. As Walter Olson noted in the Washington Post, “The recession is long over, and employment is freely available. So are vaccines. The economic rationale” for the ban is invalid and “pretextual.”

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The CDC first imposed the eviction ban on September 4, 2020, when more people had difficulty paying their rent. Back then, unemployment was far higher than it is today, no vaccine existed, and daily deaths from COVID-19 were much higher. Back then, more unemployed people were unable to obtain jobless benefits, due to breakdowns in some state unemployment systems.

Now, coronavirus vaccines are available for free.  So many jobs are available that unfilled jobs are at an all-time record: America had 9.2 million open jobs in late May, compared to 9.3 million unemployed people. While some people remain unemployed, many unemployed people are now receiving more in unemployment benefits than they got while working, due to generous pandemic relief. So most unemployed people can afford to pay their rent.

Given the big change in economic conditions, it would be wrong for the CDC to continue banning evictions. Courts have ruled that a “significant change” in market conditions can require an agency to change its policy.

Banning evictions economically destroys some small landlords. The New York Post told the story of 88-year-old Harlem landlord David Howson, who suffers from Alzheimer’s disease and has a tenant who hasn’t paid rent since 2016. “We are completely destitute,” said Howson’s daughter.

Small landlords are going broke, while tenants who have well-paying jobs refuse to pay rent, according to Reason Magazine: “One problem with the eviction moratorium is that, in practice, it doesn’t only impact those in need. It is making widespread abuse possible, in which tenants with the means to pay their rent are taking advantage of the situation to live in their apartments at no cost.”

In theory, tenants need to claim hardship to qualify for the federal eviction ban, but no one seems to check whether hardship claims are true.

Some renters won’t pay rent, even when government assistance would enable them to do so. One landlord says, “We have a renter in one of our properties who just stopped paying recently and stopped returning phone calls, apparently changed her number. What’s really infuriating is that our state has a fund for rental assistance with millions still in it and she won’t apply.”

“A landlord says her tenants are terrorizing her. She can’t evict them,” reports the New York Times:

For more than a year, Vanie Mangal, a physician assistant…watched as patients gasped their final breaths…Mangal found no respite from stress when she went home. She is a landlord who rents the basement and first-floor apartments at her home in Queens…The first-floor tenants have not paid rent in 15 months, bang on the ceiling below her bed at all hours for no apparent reason and yell, curse and spit at her, Mangal said. A tenant in the basement apartment also stopped paying rent, keyed Mangal’s car and dumped packages meant for her by the garbage….Mangal — who has captured many of her tenants’ actions on surveillance video — has not only lost sleep from the tensions inside her two-story home but also $36,600 in rental income.

The longer the eviction ban lasts, the more unpaid rent will never be recovered. Many renters are judgment proof, so landlords won’t be able to collect back rent from them ever — even if they eventually get evicted after the eviction ban ends. Landlords are still required to make mortgage payments and pay property taxes, even when they receive no rent.

As Olson observed, “It is particularly dangerous to permit the government to invent new legal authority barbed with criminal penalties of $100,000 fines plus a year in jail for landlords who attempt to reclaim what is theirs, even from a purposeful deadbeat. Small landlords across the country are being expropriated. At what point should we stop assuming that this is merely an incidental and unintended effect of the eviction moratorium?”

The Biden administration claims it has the power to block evictions, even though they are governed by state landlord-tenant law, by using a public-health law never intended to restrict evictions. The Public Health Service Act of 1944 authorizes “regulations” that “are necessary to prevent the introduction, transmission, or spread of communicable diseases.” It says that in implementing “such regulations,” the CDC can “provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so  infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in [its] judgment may be necessary.”

The CDC argued that evictions can lead to homelessness among some evicted tenants, and to increases in congregate living, which increase the spread of COVID.

But eviction restrictions are nothing like the other, more direct ways of preventing communicable diseases that the CDC is authorized to do by the statute, such as “inspection,” “fumigation,” and “disinfection.” They are thus beyond the CDC’s control, under the legal rule of construction known as ejusdem generis, as judges have explained in cases like Tiger Lily v. HUD (2021).

That is true even if evictions do lead to more homelessness.  Lots of things can cause homelessness, but that doesn’t mean the CDC can ban them. If it could, the CDC could ban single-family zoning and other zoning restrictions (because they make housing less affordable and increase homelessness).

Because its power is limited to things like “fumigation” and “disinfection,” the CDC has never even tried to regulate acts that can spread COVID far more than evictions — like failures to get vaccinated, or wear a mask in crowded settings. The CDC never attempted to shut down crowded sports stadiums and bars in the pandemic, even though these forums spread COVID far more than evictions do.

The federal government never tried to use the Public Health Service Act to restrict evictions in past pandemics, such as the deadly Asian flu epidemic of 1957-58, which caused the U.S. to experience a recession, and made the stock market lose 15% of its value in the second half of 1957.

If the CDC has the authority to control the housing market, then it has unprecedented economic and political power. Interpreting the vague language of the Public Health Service Act to give it such power would violate a legal principle laid down by the Supreme Court, that Congress must “speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”

Giving the CDC that power would wrongly alter the federal-state balance by allowing federal bureaucrats to completely take over state landlord-tenant law. That’s contrary to a Supreme Court ruling that “unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal state balance.”

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for CNSNews.com and has appeared on C-SPAN’s “Washington Journal.” Contact him at hfb138@yahoo.com

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