COVID-19 Edicts Highlight the Importance of Structural Limits on Government Power
By the time he took office, President Joe Biden had abandoned his campaign promise to require that all Americans cover their faces in public, admitting that such an order was beyond his authority. But that concession did not stop the Biden administration from imposing a nationwide eviction moratorium with an equally dubious legal basis.
Last week a federal judge in Texas ruled that the Constitution does not give the federal government the power to decree that landlords across the country must house tenants who do not pay their rent. That case, along with a challenge to Arizona Gov. Doug Ducey’s pandemic powers that the state Supreme Court will hear next Tuesday, is part of an overdue reexamination of the assumption that politicians can do whatever they deem necessary to fight COVID-19.
The eviction moratorium, which the Centers for Disease Control and Prevention (CDC) originally issued in September, was renewed by Congress in December, then extended again by the Biden administration. It is based on a breathtakingly broad reading of the CDC director’s authority to “take such measures” he “deems reasonably necessary” to stop the interstate spread of communicable diseases.
The CDC reasoned that evicted tenants might “become homeless” or “move into close quarters in shared housing,” thereby increasing the risk of virus transmission. That rationale suggests the CDC’s authority is vast, encompassing any policy that is plausibly related to disease control, including business closures and a national stay-at-home order as well as the face mask requirement that Biden ultimately decided could not be imposed by executive fiat.
Even with congressional approval, Judge J. Campbell Barker of the U
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