Patterico's Pontifications

5/5/2021

Federal Court Ends National Eviction Moratorium

Filed under: General — JVW @ 1:09 pm



[guest post by JVW]

As we emerge from the lockdown world (granted, some states far more slowly than others), the judicial branch is starting to rein in the executive and legislative branches just a bit:

A federal judge on Wednesday invalidated a national eviction moratorium after finding that the COVID-19 pandemic policy exceeded the authority of the Centers for Disease Control and Prevention.

U.S. District Court for the District of Columbia Judge Dabey Friedrich threw out the measure, which was enacted by Congress in March 2020 as part of the CARES Act and later extended by President Biden until June 30, 2021. Lawmakers cited the Public Health Service Act of 1944, which grants the federal government the authority to impose quarantines and other measures to handle health emergencies, as justification for the provision.

“The question for the court is a narrow one: Does the Public Health Service Act grant the C.D.C. the legal authority to impose a nationwide eviction moratorium?” Friedrich wrote in a 20-page decision. “It does not.”

The measure that initially passed Congress last spring was a 120-day moratorium on evictions from rental properties participating in federal assistance programs or underwritten by federal loans. Trump extended the moratorium in an executive order in August, saying that evictions threatened to spread the virus by forcing families to stay in shelters or to double up in overcrowded housing situations.

Given that the Biden Administration had thus far only extended the eviction moratorium through the end of June, the plaintiffs in this case, real estate interests in Alabama and Georgia, don’t particularly get much relief. Back in January the Trump Administration, on their way out the door, agreed to $25 billion in payments to landlords funneled through the states, in return for not evicting those tenants in arrears. Many landlords have complained, however, that the payments fall well short of the revenue they are actually losing, and that landlords did not receive a corresponding property tax moratorium to help them compensate. Tenants willingness to pay their rent over the past month is, as one might imagine, surprisingly stout in some locales, depressingly sketchy in others, and heavily determined by how serious the community is with respect to cracking down on abuses of the system.

What I think is most important here is that we are finally seeing some push-back against sometimes arbitrary rules emerging from unelected bureaucracies or being enacted without the consent of the legislature. Sure, one might argue that Judge Friedrich is a Republican appointee (Trump Administration) and that Obama or Clinton appointees will be far less likely to challenge federal bureaucrats, but this is one of the many reasons why we always maintain that the ability to appoint judges is so important. Hopefully the Washington DC crowd views this ruling as a sign that we need to return to a sense of market normalcy, the CDC is duly chastised (yeah, right!), and rising vaccination numbers along with the coming summer months help all of us get closer to the pre-COVID-19 world, even if we never quite return to the way things once were.

– JVW

36 Responses to “Federal Court Ends National Eviction Moratorium”

  1. What will progressives say when mom-and-pop landlords, or even relatively small corporations, have no choice to sell their properties to large real estate conglomerates who can more easily withstand these moratoriums? What when many of these properties get converted into tenant-owned homes such as condos?

    JVW (ee64e4)

  2. Admittedly I haven’t followed this at all, but if Congress passed a law in 2020 giving the CDC this authority, what difference does a law passed in 1944 make?

    Dave (1bb933)

  3. Given that the moratorium was obviously without authority, is there any cause for action to recover losses?

    Kevin M (ab1c11)

  4. Dave,

    The 2020 law was limited in scope and duration. Trump expanded the scope to everyone and for a longer time, without authority to do so since the 1944 law did not give him that power.

    Kevin M (ab1c11)

  5. You know that places like California, when tenants are being evicted for not paying a year’s rent, are going to go after the landlords for their meanness and “to prevent more homelessness.”

    Meanwhile stories about tenants who bought a new BMW with their rent money will be a staple on Fox.

    Kevin M (ab1c11)

  6. I’m not the biggest fan of reading legal summaries, but Judge Fredrich limited her ruling to 20 pages, so I did sort of skim through it up until the legalese made my eyes glaze over. Her ruling says that the CDC’s act has to follow a three-prong test:

    1. Has Congress spoken to the precise question at issue?

    2. “The canon of constitutional avoidance instructs that a court shall construe a statute to avoid serious constitutional problems unless such a construction is contrary to the clear intent of Congress.”

    3. Did Congress speak clearly when it granted a regulatory agency these powers?

    The judge believes that in terms of issue 1, Congress has previously (e.g., the 1944 legislation) delegated to the CDC the power to enforce sanitary conditions, inspection standards, etc., but has not explicitly given them the ability to make multi-billion dollar decisions affecting tenants and landlords. The CDC argued that Congress gave them the power to make any regulation they deemed necessary; Judge Friedrich isn’t buying it.

    For issue 2 she simply points out that the CDC has no authority to set the rates at which renters must pay their landords.

    And for issue 3, she all but laughs at the notion that Congress spoke clearly in the CARES act or any other COVID/economic recovery legislation it has enacted.

    JVW (ee64e4)

  7. No opinion on if this is legal. But it’s horrible public policy and I’m glad it’s ending.

    Time123 (52fb0e)

  8. IANAL, but is this judgement a super relevant one? How much difference does a judgement in May make for a policy that was going to end in June anyway?

    Nic (896fdf)

  9. IANAL, but is this judgement a super relevant one? How much difference does a judgement in May make for a policy that was going to end in June anyway?

    Why are you so certain that the CDC wouldn’t have extended it for a few more months after June 30? One of the points of this is that they appear to be largely unaccountable to the legislative branch, so why not definitively tell them that this policy must at last end unless it is explicitly authorized by Congress?

    JVW (ee64e4)

  10. Here is a Washington Post story on how landlords have been hammered.

    In 2014, my wife and I found our retirement home in the Bluegrass State, and bought it. However, we were not quite ready to retire, so we rented it out rather than letting it sit empty. It’s a good thing I retired when I did, and we moved down and took possession of our farm then. Who knows? If we had waited, we might still be stuck in Pennsylvania, unable to take our own property, because we couldn’t end the lease signed by our tenants.

    The Dana in Kentucky (e9cac9)

  11. So Joe’s watch sticks it to the lower and middle class again. You anti-Trumpers can’t recognize genuine evil when you see it. It wasn’t the bombastic showman; ’tis the Sinster Swampster who speaks in whisperers from behind silvered aviators.

    “The first duty of any senator from Delaware is to do the bidding of the banks and large corporations which use the tiny state as a drop box and legal sanctuary. Biden has never failed his masters in this primary task. Find any bill that sticks it to the ordinary folk on behalf of the Money Power and you’ll likely detect Biden’s hand at work.” -Alexander Cockburn – source https://www.gq.com/story/joe-biden-bankruptcy-bill

    DCSCA (f4c5e5)

  12. @JVW@10 I’m not certain, that’s one of the reasons I’m asking the question. The date for the planned ending was June. IDK it it would have ended there or not. If your answer is that the decision prevents the moratorium from being extended, I would say that’s a relevant answer.

    Nic (896fdf)

  13. The CDC argued that Congress gave them the power to make any regulation they deemed necessary; Judge Friedrich isn’t buying it.

    I think I’m glad she ruled that way. To hear that summary, the CDC could have ruled that people without masks could be shot on sight, or dragooned teenagers into emptying bedpans. Surely they didn’t mean “any” regulation.

    Kevin M (ab1c11)

  14. From The Washington Post:

    After Wednesday’s decision, tenants’ rights advocates called for the Biden administration not only to defend the policy but to step up legal protections that will keep people in their homes.

    No, no, no, no, no! The eviction moratoria have not kept “people in their homes,” but kept people on other people’s homes!

    In the wild and unthinking reaction to the virus, governments across the country, federal, state and local, have devastated our economy and turned individual American citizens into both slaves and agents of the government. The landlord who cannot collect his rent, yet not evict the squatters — and that is exactly the right word — who are living in his property, has been transformed into an unpaid government housing agency, and has had his property effectively seized by the government for the private benefit of others. What was his is no longer his. The Fourteenth Amendment states that the government may not seize anyone’s property without due process of law, but unless due process of law now includes government edicts, that constitutional provision has simply been waved away.

    The Dana in Kentucky (e9cac9)

  15. Hard to begin returning to normalcy when the CDC announces kids at outdoor camps should be wearing masks this summer…

    Hoi Polloi (b28058)

  16. As someone who is around a boatload of kids, including ones who did outdoor PE in 90 degree heat this week, the kids are actually not having a lot of trouble with the masks.

    Nic (896fdf)

  17. Not to be outdone, President Biden now says the US will “waive” intellectual property rights to patents on Pfizer and Moderna vaccines, which both involve a novel method of creating instant vaccines. The patents are basic ones applicable to a wide range of viruses and the companies are raising holy hell.

    https://www.nytimes.com/2021/05/05/us/politics/biden-covid-vaccine-patents.html

    Of course, the government can do this — it has sovereign rights to use patents for critical needs. See “the laser.” But it does have to pay compensation (4th Amendment). I suspect that compensation will be a doozy.

    Kevin M (ab1c11)

  18. *Italics not closed right.

    Kevin M (ab1c11)

  19. *5th amendment. oops.

    Kevin M (ab1c11)

  20. I see “Help Wanted” signs everywhere. Meanwhile, people can’t pay their rent? It’s about time this eviction moratorium was evicted.

    norcal (01e272)

  21. Not to be outdone, President Biden now says the US will “waive” intellectual property rights to patents on Pfizer and Moderna vaccines

    That’s not what he said.

    He said the US would support an international agreement to that effect in the WTO.

    Moderna already announced that it would not enforce its COVID vaccine patents.

    Dave (1bb933)

  22. Also, I’m not so sure the COVID vaccine involved new technological breakthroughs.

    The reason they had something effective so fast was because the technology was already well-developed (and by multiple labs).

    Dave (1bb933)

  23. He said the US would support an international agreement to that effect in the WTO.

    Moderna already announced that it would not enforce its COVID vaccine patents.

    But that’s not what they want. They want Moderna and Pfizer to set up production plants world wide with full technology transfer. Not enforcing a patent is useless to someone who is 100 years away from using it. These mRNA vaccines are truly trick stuff, even India can’t do it. Maybe China could, in a few years, but that doesn’t help (and China is exactly the folks not to give this to).

    Think of giving the blueprints to Cern’s LHC to a country that just figured out cyclotrons. It would require more help.

    Kevin M (ab1c11)

  24. The reason they had something effective so fast was because the technology was already well-developed (and by multiple labs).

    There are 3 main techniques they used:

    *Old school: Killed or weaken3ed virus to crate immune response, done since Salk (and to some degree since Jenner).

    *New school: Using virus vectors (typically an adenovirus) to carry proteins of interest for immune response. J&J, Astra-Seneca, and Sputnik V.

    *Bleeding-edge school: Coding messenger RNA to order the body’s cells to generate the protein(s) of interest for immune response. Pfizer, Moderna, CureVac (forthcoming from Germany). These use several novel processes and ideas for manipulating the immune system and allow quick development of a new vaccine. Vaccine candidates were available in March 2020.

    BioNTech received major equity investment in March 2020 on the basis of its vaccine candidate, and Pfizer also received funds. The is big-league capitalism and giving up all the IP irretrievably is not something done lightly.

    Wikipedia has excellent articles on the Covid-19 vaccines. Start here.

    Kevin M (ab1c11)

  25. I read this one.

    I think Biden’s move is a calculated stall.

    In practice the haggling over IP is going to drag on a long time, and may not go anywhere in the end. It’s obviously faster, cheaper and smarter to use existing facilities to produce vaccines for the rest of the world.

    Rather than taking the diplomatic hit by being the bad guy in return for no real benefit (i.e. Trump-style) we’re agreeing to go along since there’s a good chance it won’t make any difference.

    As an aside, I wonder if the prospect of giving our rapidly accumulating vaccine surplus away to “sh!thole countries” could provide the missing “own the libs” motivation for the Trump cult to use it by getting vaccinated themselves…)

    Dave (1bb933)

  26. Good ruling by the court. It was the correct decision.

    HCI (92ea66)

  27. My question is: If someone has money to pay rent and is not paying it, what is stopping people from going into small claims court to collect money, just as if it were a note of debt? Not practical?

    Sammy Finkelman (51cd0c)

  28. The esteemed Mr Finkelman asked:

    My question is: If someone has money to pay rent and is not paying it, what is stopping people from going into small claims court to collect money, just as if it were a note of debt? Not practical?

    Even if this were done, how would it be enforced? The enforcement mechanism for non-payment of rent is eviction, and most states have severely restricted that.

    The Dana in Kentucky (e9cac9)

  29. The Fourteenth Amendment states that the government may not seize anyone’s property without due process of law, but unless due process of law now includes government edicts, that constitutional provision has simply been waved away.

    The Cherokees, Chickasaws, Shawnees, and Yuchis of Kentucky were unavailable for comment.

    nk (1d9030)

  30. No eviction moratorium, federal or local, waived payment of the rent owed, and the remedy of eviction has never been the exclusive remedy for non-payment of rent. A landlord can join a claim for rent in an eviction action or sue separately.

    The statute of limitations for the second is up to ten years. If you had had a good tenant in the first place, with prospects and a future, a credit rating he wants to protect, and hopes for future wages and property he wants to keep free of garnishments and liens, you’ll get your money.

    nk (1d9030)

  31. Federally rent-subsidized properties, such as the Kushners’, where eviction is the only realistic remedy, were excluded from the moratorium. I won’t look up if it applied to trailer park lots, but there’s a remedy called distress for rent where the lot owner could attach the trailer and its furnishings.

    nk (1d9030)

  32. Would cessation of cash flow hurt some small landlords? Absolutely. But how else will the Trumps and the Kushners and the rest of their ilk snap up properties in poor neighborhoods for a song — well, okay, the past due mortgage and real estate taxes — and gentrify them?

    nk (1d9030)

  33. My question is: If someone has money to pay rent and is not paying it, what is stopping people from going into small claims court to collect money, just as if it were a note of debt? Not practical?

    One of the articles to which I linked in the post — I think maybe it’s the one from Buffalo — had a landlord organization lamenting that you cannot get this sort of case on the court docket in the age of COVID.

    JVW (ee64e4)

  34. Stop paying people not to work. Stop telling people they don’t have to pay their bills. Stop encouraging socialism.

    Problem solved.

    NJRob (eb56c3)

  35. I agree with NJRob @35.

    Time123 (cd2ff4)


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