Trump’s Eviction Moratorium Could set a Dangerous Precedent
On Saturday, the federal government’s Center for Disease Control will issue a new regulation barring eviction of millions of residential tenants around the country. If it survives likely legal challenges, the new policy would set a dangerous precedent undermining federalism, the separation of powers, and property rights. Conservatives, in particular, will have reason to regret it when a Democratic president inherits the same sweeping powers.
The CDC policy bars eviction, until the end of the year, of any residential tenant who makes a sworn declaration to the effect that they 1) have “used best efforts to obtain all available government assistance for rent or housing,” 2) they expect to earn less than $99,000 ($198,000 for joint tax filers) in 2020 or did not have to report any income to the IRS in 2019, or received a stimulus check under CARES Act, 3) “the individual is unable to pay the full rent… due to substantial loss of household income… , a lay-off, or extraordinary out-of-pocket medical expenses” 4) “the individual is using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit” and 5) “eviction would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting.”
These rules could potentially apply to a wide range of people. The income cutoff of $99,000 for an individual taxpayer is far above the national poverty line, and indeed far above the median national household income of 61,937. (which includes numerous multi-person households). The requirement that the eviction “would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting” could potentially apply to any situation where the evicted person ends up living in a new home with at least one other person. Having a roommate (including a family member) surely counts as a “shared living setting.” Thus, the measure would protect from potential eviction large numbers of people who are clearly not poor, and would not end up homeless if evicted.
Such sweeping action by the executive normally at least requires authorization by Congress. As co-blogger Josh Blackman explains, the claimed authorization here is 42 CFR Section 70.2 a regulation that gives the Director of the CDC the power to “take such measures to prevent such spread of the [communicable] diseases as he/she deems reasonably necessary, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.” The CDC can take such measures anywhere it deems local and state regulations to be “insufficient” to limit the spread of disease across state borders.
Section 70.2 is itself just a regulation, not a law enacted by Congress; so there may be some question as to whether it itself has legislative authorization. Assuming Section 70.2 does have such authorization, the Administration may be overreaching when it claims that it permits a sweeping nationwide eviction moratorium.
As Josh notes, the possible measures listed in the regulation—”inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection” are all relatively narrowly targeted policies focused on specific sources of infection, not wide-ranging nationwide regulations that apply regardless of how much danger there is in the particular location. Esjudem generis, a standard canon of legal interpretation, requires that a list of items in a law should be interpreted as being “of the same kind” as others on list. Here, everything on the list seems to be relatively limited in scope. Thus, the regulation only permits narrowly targeted, localized restrictions.
On the other hand, the administration can argue that these specific examples are just meant t
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