A Virginia landlord has filed suit against the CDC’s eviction moratorium, alleging a whole host of constitutional violations. But the nub of the case is the landlord’s assertion that the moratorium is “an affront to core constitutional limits on federal power.” Tea Partiers have long been concerned with the aggrandizement of federal power, so we have to ask ourselves whether we are still concerned now that Trump, not Obama, is in office.
The landlord starts off his complaint with the observation that he expected, when he leased the property, that the tenant would pay rent and the landlord could go to court to seek an eviction if the tenant did not. The landlord continues to pay maintenance, utilities, and other expenses on the property. The CDC’s moratorium is unprecedented, not authorized by any statute, and suspends state law in the name of controlling the pandemic.
There are six constitutional violations alleged in the complaint. First, the moratorium violates the landlord’s right to access the courts to seek lawful eviction. The right to access the courts is found in the intersection of the Privileges and Immunities Clause, Due Process, Equal Protection, and the First Amendment Petition Clause. Second, the Due Process Clause of the 5th and 14th Amendments and these other constitutional provisions, not agency declarations, are the supreme law of the land under the Article VI Supremacy Clause. Third, the CDC’s regulation cannot preempt state contract law under the 10th Amendment because the relevant statute generally does not allow CDC regulations to supersede provisions of state law. Fourth, the moratorium offends the Supreme Court’s anti-commandeering doctrine under the 10th Amendment because stopping evictions requires the participation of state courts and state officers to administer a federal program. Fifth, upholding the moratorium would mean that Congress has delegated power to an agency without giving the agency any guiding principles to limit the exercise of that power. In other words, Congress would be asking the CDC to do Congress’ job and legislate, when agencies are only supposed to regulate within boundaries Congress sets. Finally, the CDC is attempting to suspend state laws that govern the eviction process. This attempt by the executive branch to suspend laws enacted by the legislative branch, without the legislative branch having delegated that power to the executive branch, violates separation of powers, or so it is alleged.
The landlord has filed for a preliminary injunction against enforcement of the moratorium, and that’s as far as the case has gotten as of this writing.
Politically, the case looks like a neatly laid trap. Rule in favor of the CDC and you hand Trump a political victory. Rule against the CDC, you make every renter in America mad at you and hand Trump a political victory. Trump wins either way.
A moratorium might sound great for tenants, but what about landlords? What about their property rights under the U.S. Constitution? It’s tempting to say the government should forbid evictions so tenants aren’t harmed, and even go on to say government should pay landlords so they are made whole. But can government at any level really afford to subsidize landlords indefinitely? Obviously not, so the only real solution to this problem is to end the lockdowns and get people back to work as quickly as possible. Government created a situation where lots of people can’t pay their rent, setting off a whole cascade of consequences throughout the economy, starting with landlords who, as a result, can’t meet their own obligations. With the number of COVID hospitalizations dwindling, it’s time for government to get out of the way and let life get back to normal.
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