Regulatory Commissars

CDC Abuses Power With Eviction Ban

Abrogating contracts is not the way to help landlords or tenants.

Louis DeBroux · Sep. 16, 2020

One of the very few bright spots during the Wuhan coronavirus pandemic has been that, despite the Left’s ludicrously hyperbolic claims that he is an authoritarian tyrant, President Donald Trump has actually shown remarkable restraint and a respect for the constitutional limits of his powers as president, rather than taking the opportunity to expand presidential power under the Democrat axiom of never letting a crisis go to waste.

While Democrats have excoriated President Trump for not implementing a nationwide mask mandate or forcing a nationwide shutdown, he has instead offered the resources and manpower of the federal government to assist state governors, leaving it to them to develop mitigation plans for their own states.

And this is as it should be. It makes zero sense to treat New York City, which has a population density of 26,400 residents per square mile, the same as you would treat North Dakota, South Dakota, and Wyoming, which have a combined population less than the Big Apple.

This type of response from President Trump is exactly what should occur under the federalist system of government created by our Founding Fathers.

Unfortunately, there is one glaring exception to the Trump administration’s respect for constitutional constraints on its power, and it’s from an unlikely suspect — the Centers for Disease Control (CDC).

Earlier this month, the CDC announced a ban on evictions through the rest of the year. According to the ban, renters who expect to earn less than $99,000 ($198,000 for couples) this year, just by signing a statement declaring they have lost income and pursued every avenue of federal rental assistance, and would be homeless or forced to live with someone else if evicted, can prevent the landlord from removing them for failure to pay.

The highly questionable justification for this dictate is Section 361 of the Public Health Service Act, which allows the CDC to take such measures as will prevent the spread of communicable diseases between states.

The statute states, in part, that the U.S. surgeon general, with HHS secretary approval, can “make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases [from foreign countries into the States, or between states].” Moreover, “For purposes of carrying out and enforcing such regulations, the Surgeon General may 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 his judgment may be necessary.”

To claim that this statute, which focuses on physical mitigation actions, can be extended to ban evictions, under the argument that COVID-infected tenants who are evicted will take the virus to their new residences, is quite a stretch.

If such an elastic interpretation of the statute can justify banning evictions, then what is to prevent a Democrat president from banning evictions based on race? After all, Democrat governors in Michigan, Nevada, and Wisconsin have declared “racism” to be a public health crisis, so could this interpretation not also apply?

The ban will undoubtedly trigger lawsuits from landlords. After all, it seems to be a clear violation of the Takings Clause of the Fifth Amendment, which declares that private property can’t “be taken for public use, without just compensation.” Then again, with the Supreme Court’s horrendous decision in Kelo, that is not a given.

The unintended consequences of this action, much like the lockdowns in response to the coronavirus, could end up being far worse than the problem itself. Even if renters get relief from paying rent, landlords get no such luxury. They must still pay their mortgages, and their employees, and all other costs of maintaining property that rents pay for. Roughly half of the 48 million rental units in the U.S. are owned by small businesses, and without that rental revenue many property owners will face foreclosure.

In fact, CNBC reported last week, “Housing experts warn that barring landlords from evicting nonpaying tenants without compensating them could have a massive destabilizing effect, felt first in the commercial housing market and then in credit markets, as both large and small-scale landlords default on mortgages.”

The last thing we need in the midst of a global pandemic and a recovering economy is another collapse of the credit and housing markets.

As it is, countless landlords nationwide have already shown great compassion and generosity by reducing or deferring rent payments to those in need, which has negated a massive wave of evictions predicted by Democrats as they push another taxpayer-funded bailout.

A much better solution than the eviction ban would be another round of relief checks for low-income households, the majority of which are renters. While certainly not an optimal solution, it’s far better than government abrogating private contracts. This would also provide help for the truly needy without shoveling cash to the merely inconvenienced.

President Trump has been truly exceptional in showing restraint and respect for the constitutional limits of his powers. Correcting this egregious abuse of power by the CDC would only improve upon that restraint.

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