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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.S. District Court for the Eastern District of Texas ruled last week, blocking the enforcement of rent obligations exceeds the federal government's authority to regulate interstate commerce. Barker noted that the blanket ban on evictions, which the government claimed it could impose even in the absence of a public health threat like COVID-19, was historically unprecedented, did not involve interstate commerce, and was not necessary to enforce a broader scheme of economic regulation.
Barker emphasized that the case had no bearing on the constitutionality of state or local eviction regulations. His ruling hinged on the distinction between the federal government, which has no more authority than the Constitution grants, and the states, which retain a broad "police power" that extends much further.
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