When the U.S. Supreme Court missed the opportunity to directly declare that the Biden administration’s extension of the nationwide eviction moratorium was unconstitutional, it was only a matter of time until the White House and CDC would extend the suspension without any Congressional action. After Biden declared that no constitutional options were available on August 2, the CDC went ahead anyway on August 3 with an extension running until October.
In joining in with the Court’s liberals and Chief Justice John Roberts, Justice Brett Kavanaugh’s concurrence amounted to not much more than a warning to Biden not to extend the moratorium once again. After letting the last expiration date pass on July 31, Biden, of course, succumbed to political pressure and ignored Kavanaugh’s warning.
The new extension also includes some terrifying penalties for any landlord who violates the moratorium. The CDC says that individuals violating the order can be fined $100,000 and imprisoned for one year for each violation. The maximum fine for an offense that results in death is $250,000. Organizations that violate the order face a $250,000 fine for each infraction, which increases to $500,000 if the eviction results in death.
The first obvious problem with the CDC extension is that it has already been declared unconstitutional. Despite the Supreme Court’s failure to terminate the moratorium earlier this summer when it had the opportunity, the Court did make an explicit finding that the CDC order has no support in the Constitution.
According to the Constitution, only Congress has the authority to make legislation or inflict criminal punishments. However, the CDC has been cloaked with administrative authority as a part of the executive branch. The entire premise for the moratorium amounted to speculative fiction that would likely doom ordinary Congressional legislation.
The theory was that if people get evicted, they will be forced to live in closer quarters, increasing the potential for COVID-19 infections. On that “logic,” every private residential lease in the country was rewritten by an administrative agency.
Even with an act of Congress, the federal government is only empowered to regulate “interstate” commerce. Modern Supreme Court cases have held that entirely local activity that is noneconomic cannot impact interstate commerce.
The legal process of evicting a tenant for nonpayment is not economical. An eviction is not an economic good that can be produced or consumed. Removal is simply a legal remedy for breach of contract. To think otherwise would be like finding a restraining order prohibiting trespass or harassment is somehow economical.
Many thousands of small businesses and families are being destroyed because they are being dispossessed of their property without due process because of this latest moratorium extension, even if the Supreme Court rules in favor of the ruling.