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The Tyranny of the Covid-19 Eviction Moratorium

The U.S. Supreme Court recently permitted the eviction moratorium established by the Centers for Disease Control to continue, at least until July 31, when the CDC plans to lift it. The Court wrongly decided the matter. It should have immediately lifted the moratorium.

Historically, governments have held “inherent” police powers to protect the health of the citizenry. But the federal government is different. It was never intended to have inherent powers. Our American ancestors would never have accepted the Constitution if it was calling into existence a government with inherent powers. 

Instead, the powers of the federal government are limited to those enumerated in the Constitution. If a power isn’t enumerated, it cannot be legally exercised. 

The Constitution does not delegate any power to the federal government to enact laws to protect people’s health. Therefore, the CDC’s eviction moratorium is illegal under our form of government.

The matter is aggravated by the fact that Congress, which is supposed to be the entity that enacts the laws, didn’t even enact this particular eviction moratorium. It was established by a decree of the CDC, which is nothing more than a bureaucratic agency within the executive branch of the government. 

How is that different from what totalitarian regimes do? The ruler in those regimes or his designated bureaucrats simply issue decrees that have the force of law. They don’t bother with legislatures because usually they don’t have legislatures. That’s what makes them dictatorships. 

There is an amusing part of the Supreme Court’s decision. It’s the opinion by Justice Brett Kavanaugh, who was appointed by President Trump under rather auspicious circumstances. According to an article on CNN.com, Kavanaugh agreed that the CDS’s moratorium was illegal. But he said that he would permit it to stand since the CDC intended to lift it on July 31 anyway. So, under Kavanaugh’s reasoning, it’s okay to let an illegal action stand so long as the government is promising to stop it in a couple of months or so. That’s what passes for sound legal reasoning in Kavanaugh’s mind.

What about eviction moratoria established by the states? Unlike the federal government, the states have long been held to have inherent police powers to enact laws to protect the health of the citizenry. (That’s why we should enact a constitutional amendment that separates healthcare and the state at both the federal and state levels.)

However, the Constitution expressly prohibits the states from enacting laws “impairing the Obligation of Contracts.” Moreover, the Fourteenth Amendment prohibits the states from depriving people of property without due process of law. 

When a landlord and tenant enter into a contract, the landlord normally has the right to evict the tenant on non-payment of rent. If the tenant defaults, the landlord is entitled to initiate eviction proceedings, with the aim of finding another tenant who can pay. 

Thus, it goes without saying that when a state enacts an eviction moratorium, it is impairing the obligation of contracts. It is also depriving the landlord of property without due process of law by forcing him to rent his property for free.

Proponents of this type of economic intervention justify this unconstitutional law by saying that renters have lost their jobs and are financially unable to pay their rent. It would be cruel to evict them, they say. They also say that evictions would help spread the virus and, therefore, the law is justified under the state’s police powers.  

But the Constitution is the supreme law of the land, and it says nothing about those two conditions. Its provisions on impairing the obligation of contracts and due process trump the state’s police powers.

Moreover, what about landlords who are barely making ends meet? How are they supposed to pay a mortgage on the property they are renting? Economic interventionists automatically assume that all landlords are “rich” but such is clearly not the case. But even if they are, that provides no excuse to violate the Constitution and effectively steal their property. 

Why can’t interventionists use their own money to help out renters? They could easily form a fund to which people could donate. That fund could be used to pay people’s rent. Of course, that’s the last thing economic interventionists want. That would entail using their own money to be good. They want to be good with the landlords’ money.

The ultimate solution to all this tyranny is to get government out of the healthcare business entirely. That would mean no more government-mandated lockdowns, which would mean less people unemployed, which would mean less evictions. The worst thing is for government to be destroying people’s livelihoods and then using the force of the state to unconstitutionally and illegally abrogate the sanctity of contracts.

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Jacob G. Hornberger
Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.
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