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June 30, 2021

The Pandemic Moratorium on Private Property

The Supreme Court upheld the CDC’s power-grabbing eviction ban.

Whatever happened to that 6-3 conservative Supreme Court majority? The one that was supposed to sweep in and restore Rule of Law? As with all things in Chief Justice John Roberts’s Court, it’s not that simple.

“The court on Tuesday rejected a plea by landlords to end the Centers for Disease Control and Prevention moratorium on evicting millions of tenants who aren’t paying rent during the coronavirus pandemic,” reports the Associated Press. “Last week, the Biden administration extended the moratorium by a month, until the end of July. It said then it did not expect another extension.”

Some seven million households are not caught up on rent, and the plaintiffs in this case allege $13 billion in unpaid rent per month, which is causing serious economic damage to many of the nation’s 10 million landlords.

U.S. Judge Dabney Friedrich in Washington had previously struck down the CDC’s power grab, though she issued a stay while appeals were filed. The DC Circuit Court upheld the moratorium. Five of the nine justices did likewise.

Justice Brett Kavanaugh wrote the opinion, and while he said he agreed with Friedrich, he ruled the opposite way “because the CDC plans to end the moratorium in only a few weeks,” and the additional time will allow more taxpayer rental assistance to be distributed.

Perhaps, one might argue, Kavanaugh, Roberts, and the Court’s three leftists were displaying judicial restraint. They were merely allowing the political branches leeway in addressing a once-in-a-century pandemic the best way they saw fit.

But this was a critical opportunity for the Court to declare that exceeding authority is not acceptable. As a simple matter of law, either the CDC has this authority, or it does not. Even Kavanaugh acknowledges it does not, yet he still deferred for … reasons.

Elected officials and faceless bureaucrats alike have used the coronavirus pandemic as an excuse for all manner of tyrannical diktats. “Just another month,” they say. And then what happens next month when the CDC decides to repeat that refrain because of “new variants” in the virus or whatever the excuse might be?

The moratorium was supposed to end in December. And then January. And then June. Now July. Kavanaugh insists “specific congressional authorization (via new legislation) would be necessary” to extend it further. We’ll see.

Judge Friedrich was exactly right: “Under its reading, so long as the Secretary [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.”

The pandemic isn’t fully in the rearview mirror, but nearly two-thirds of American adults have had a least one shot, and confirmed cases of COVID are down a whopping 96% from January. This is not the emergency the CDC says it is.

Regardless, does the CDC really have the constitutional authority to order landlords to host tenants for free? Whatever happened to property rights? Or does Congress have the constitutional authority to pay the rent bill — effectively with a landlord’s own tax dollars? Is this really the Republic our Founders bequeathed to us?

Millions of Americans found themselves suddenly unemployed last spring because of the emergency diktats of government officials. No one wants to see tenants turned out onto the streets, or left to congregate in shelters when a highly contagious communicable virus is on the loose. But one-size-fits-all orders from a federal bureaucracy in Washington, DC, are not how such things should be addressed. State law should determine this, and while there may be an argument for government money to pay for the cost of government lockdowns, churches and other civic organizations should be providing aid. Instead, everyone’s content to outsource such difficult decisions to the Beltway, and Liberty suffers as a result.

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