by Mitch Kokai
Senior Political Analyst, John Locke Foundation
I happen to believe that the eviction moratorium has been dreadful policy and a deceptively packaged one — harebrained socialism masqueraded as a humanitarian counter-pandemic measure. Progressives (not just Democrats but the Trump populists who first conceived of the policy) will, of course, disagree with that, and that’s a fine policy argument to have. One thing House speaker Nancy Pelosi should not get away with, though, is her claim that the Biden administration could have extended the moratorium unilaterally.
It has been obvious through months of court decisions that the CDC-ordered measure, which expired Saturday, was lawless.
I am persuaded, in originalist terms, that even an explicit congressionally authorized moratorium should be unconstitutional because rental agreements are overwhelmingly intrastate commerce; they are thus not within Congress’s interstate commerce power enumerated in Article I. …
… That said, the principal flaws in the moratorium were that a) Congress did not explicitly authorize it, b) there is no inherent executive authority to order it, and, fatally, c) it is not authorized by the statutory law that the CDC distorted in rationalizing it. The lower court decisions that spelled this out were persuasive. …
… [T]he Supreme Court made it clear that the moratorium was ultra vires — beyond the scope of legal power — when it ruled more than a month ago. Four conservative justices were prepared not merely to say so but to vacate a stay on a lower court order scrapping the moratorium. Yet, the High Court erroneously failed to do this because Justice Brett Kavanaugh calculated that, although lawless, the moratorium was going to lapse in a few weeks anyway.
Not holding my breath, but the shenanigans of the last few days should be instructive for Kavanaugh, and for Chief Justice John Roberts, who sided with the Court’s three progressives in opposing the lifting of the stay.
They decided that doing their job — namely, ruling on the legal question before the Court — would be too disruptive.