(Brad Polumbo, Foundation for Economic Education) Did you know that unelected bureaucrats at the Centers for Disease Control have the power to unilaterally commandeer rental properties nationwide?
Or, at least, they did until yesterday—when a federal judge ruled that the CDC’s so-called “eviction moratorium” is illegal. (The judge has temporarily stayed her order pending the gathering of more information and giving the government an opportunity to respond – Headline USA).
Here’s the background.
Back in September, the CDC issued a mandate that landlords could not evict non-paying tenants in most circumstances. Landlords who violated the order faced potential penalties up to a $100,000 fine and a year in jail. In doing so, it essentially permitted renters to occupy their landlord’s property indefinitely without payment. This wrought havoc on the rental market and has financially ruined many middle-and-working class landlords.
But even setting the dysfunctional results of the policy aside, the CDC was always relying on razor-thin legal justification for its mandate. It pointed to one vague law that says during a pandemic the CDC director “may take such measures to prevent such spread of the diseases as he/she deems reasonably necessary, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.”
The legality of using this one narrow provision to commander the national rental market was always highly suspect.
Indeed, Judge Dabney L. Friedrich wrote in her Wednesday ruling striking down the moratorium that the CDC’s logic would mean that “so long as the Secretary [of the Department of Health and Human Services] can make a determination that a given measure is ‘necessary’ to combat the interstate or international spread of disease, there is no limit to the reach of his authority.”
Clearly, she says, that is not authorized by the law’s text and was not Congress’s intent during its passage.
FEDERAL JUDGE NULLIFIES #EVICTION MORATORIUM: It’s a “dramatic and very, very sweeping decision” by U.S. District Judge Dabney L. Friedrich, @GallagherLaw tells me.
“The CDC order must be set aside,” the ruling reads — not only for these litigants, but nationwide. @MyNews13 pic.twitter.com/vtrYTBfLxg
— Molly Duerig (@mollyduerig) May 5, 2021
“It is the role of the political branches, and not the courts, to assess the merits of policy measures designed to combat the spread of disease,” the judge wrote. “The question for the Court is a narrow one: Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium?
“It does not,” Judge Friedrich concluded.
This development comes as a vindication for the select few lawmakers who called out the program’s unconstitutionality early on despite the slings-and-arrows that came with being perceived as opposing relief for people who can’t pay their rent.
If society concedes that the CDC can unilaterally seize property (with their ridiculous rent moratorium) our devolution into a “bureautocracy” is complete, and private property no longer exists.
— Thomas Massie (@RepThomasMassie) September 2, 2020
CDC does not have the authority to do this. It’s dangerous precedent and bad policy. https://t.co/Gcz0ZmUtZh
— Senator Rand Paul (@RandPaul) September 3, 2020
“Rental contracts are governed by state law,” Congressman Thomas Massie said. “There is no federal authority to overturn them… the CDC order is an affront to the rule of law.”
“CDC does not have the authority to do this,” Sen. Rand Paul wrote at the time. “It’s dangerous precedent and bad policy.”
Kudos to them for taking an unpopular but principled stand. We need more lawmakers who are willing to stand up for the rule of law and property rights even in times of emergency.
We can and should continue to have a robust debate over what role the federal government should play in responding to the lingering COVID-19 pandemic. But we should all be able to agree that the government shouldn’t pursue solutions that clearly exceed its legal authority.
