President Trump initially ordered the eviction moratorium in late March 2020, when the pandemic’s onset had our nation reeling and our economy cratering. The executive order lapsed in July. Yet it was soon revived by the Centers for Disease Control — which vies for Woke-est Executive Agency in the Department of Health and Human Services. (Recall: It was the CDC’s idea to prioritize “racial justice” in vaccine distribution — over such quaint medical considerations as, you know, controlling disease). The CDC’s September order claimed authority delegated by Congress and posited that keeping tenants in their homes would prevent the spread of COVID. This was social-justice dogma in health-care patois: The government wasn’t ordering tenants to quarantine; it was preventing property owners from evicting tenants who had failed to pay their rent.
The CDC order was supposed to lapse at the end of the year, but it has since been revived by legislation and then extended to the end of this month by President Biden. Washington contemplates a still-longer suspension, but because evictions are not plausibly a budgetary issue, the moratorium was ineligible to be rammed through under “reconciliation” rules; Democrats were thus unable to fold it into the blue raid on the treasury that they called “COVID-relief” legislation. Biden will thus presume to order a moratorium, just as Trump did.
This raises a number of legal questions. For example, does Congress have the constitutional authority to delegate to the executive branch whatever power lawmakers may have to regulate evictions? And assuming for argument’s sake that Congress has such authority, can the provisions on which the CDC relies fairly be read to confer that power? As professors Josh Blackman and Ilya Somin have detailed at the Volokh Conspiracy, the lower federal courts have so far dubiously indulged the CDC’s claims of authority on these points.
Judge Barker was presented, however, with a different issue, a more fundamental one: Does the federal government have the power to direct property owners not to evict their tenants?
Before you leap to the conclusion that Barker and the property owners who petitioned his court are wild-eyed, anti-government libertarians, understand this: No one in the case is arguing that no government has the powers to regulate landlord-tenant relations, or to impose restrictions on private property in an infectious-disease crisis. The question is: Which government has such authority?
The theory of our constitutional system is that liberty depends on separation of powers, not just among the branches of the federal government but, just as vitally, between Washington and the sovereign states. Activity, commercial or otherwise, that occurs within a state, is supposed to be governed by state officials. As Judge Barker observed, “the states may regulate residential evictions and foreclosures, as they have long done.” The only question before the court was whether the federal government also has this authority.
The Framers would have scoffed at the notion that Congress (to say nothing of the president) had any power to dictate relations between landlords and tenants. The Commerce Clause, in Article I, Section 8, authorizes Congress to regulate interstate and foreign commerce. Even as expanded by the same section’s Necessary and Proper Clause, Congress should not be able to reach wholly intrastate relations between owners and renters of residential property. To be valid, a law must be necessary and proper to the execution of a power the Constitution expressly vests in Congress — the clause is not supposed to be a pretext for usurping state power and devouring individual liberty.
Intrastate rental arrangements have nothing to do with the channels or instrumentalities of interstate commerce. Real property does not move across state lines. The federal government should have nothing to say about commerce in a state — at least assuming we are not talking about restrictions based on racial discrimination (addressed by the 14th Amendment and civil rights legislation).
For most of the last century, however, in the progressive push for federal intrusion on what used to be the spheres of state and private action, the Supreme Court has empowered Congress to regulate activities that “substantially affect” interstate commerce, even if they are wholly intrastate. While there are some precursor cases, the Court’s infamous 1942 Wickard v. Filburn decision is generally seen as seminal. It upheld federal regulation of Ohio farmer Roscoe Filburn’s production of his own wheat on his own farm for his own consumption (to feed his own animals), rationalizing that doing so was necessary to prevent these intrastate activities from undermining a New Deal scheme to stabilize wheat prices nationally. That is, in order to facilitate the federal government’s management (if you can call it that) of the national economy, Congress would be permitted to restrict activities that were not even properly described as commerce, let alone interstate commerce.
The “substantial effects” doctrine is foundational to the centralization of governance, the erosion of federalism, and the rise of the administrative state. So of course, constitutional conservatives fantasize that the Supreme Court will someday overrule it — no doubt, the day after pigs fly and Joe Biden faces down the Woke Left. Every now and then, the justices juke us with such feints as United States v. Lopez (a 1995 case that invalidated Congress’s Commerce Clause-based criminalization of gun possession in a school zone) and Morrison v. United States (invalidating in 2000 Commerce Clause-based statute authorizing federal civil lawsuits by victims of sex-motivated violence). But these turn out to be more like scratching an itch than altering course. In the main, when it comes to sweeping Commerce Clause power, the Court is Leviathan’s rubber stamp.
The mortgage moratorium is an absurd federal overreach. The pandemic has not hit every region of the country the same way, and the state governments, the traditional regulators in this domain, are more than capable of imposing rent or eviction relief if it is necessary. The moratorium is a naked power grab. I wish I could be confident that the higher courts will uphold Judge Barker’s rejection of it — and echo his closing crescendo: “Although the COVID-19 pandemic persists, so does the Constitution.”
That, alas, is doubtful.
Barker is plainly right that the CDC, Presidents Trump and Biden, and the federal government generally have been so presumptuous about their supposed power to supersede private lease terms that they did not even pretend to root the eviction moratorium on some alleged effect on interstate commerce. They did not claim to be engaged in some national economic activity which could be undermined absent federal regulation of private, intrastate rental agreements. The rationalization, offered after the fact, that some small percentage of evicted tenants will move to another state involves, at most, a trifling effect on interstate commerce. Patently, the eviction moratorium has nothing to do with impeding the spread of the virus, which is transmissible regardless of whether an evicted tenant relocates across the country or across the street.
Still, a premise of Barker’s rationale is that a rental arrangement does not have an “economic character.” Real property, he reasons, does not move. Rather than economic, this is said to make it “possessory” — as if that talisman made the financial realities of a rental lease disappear.
Where the judge does concede those realities, he waves them away, saying that, by its own terms, the moratorium does not change the parties’ obligations (i.e., the tenant still owes the back rent). But that hardly changes the economic character of the contract — the landlord’s eviction right is triggered by the failure to pay. To be sure, this does not convert the transaction into interstate commerce. But it is certainly more in the nature of commerce than other intrastate activity that the Supreme Court has found regulable under the interstate commerce clause. On that score, Justice Scalia’s 2005 concurrence in Gonzales v. Raich (in which the court upheld federal criminalization of marijuana possession that was legal under state law) is dismayingly instructive.
In the end, there is only one reason I think Judge Barker’s ruling has a chance of standing: The sheer arrogance exhibited by federal officials at the suggestion that the Constitution limits their power.
Before issuing his opinion, the judge conducted oral argument between the parties. In response to his questions, the Justice Department admitted that COVID-19 was merely the excuse used — the opportunity exploited — by the federal government in dictating what owners may do with their property. The judge asked: What if there were no COVID-19? Could Congress forbid evictions because of some other reason it decided was important? A reason that had nothing whatsoever to do with commerce?
The Justice Department lawyer asserted that merely by invoking the Commerce Clause — Washington’s own talisman — the federal government could suspend residential evictions for any reason. Judge Barker was struck by the government’s proclamation that any reason includes an agency’s subjective view of what “fairness” calls for.
For that alone, the courts — the Supreme Court especially — should rethink the monster they’ve created. They should . . . but they probably won’t.
