The Eviction-Moratorium Decree: Why It’s Unconstitutional

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I concur with Phil Klein that President Biden has violated his oath of office by reinstating the eviction moratorium. It is important to spell out why.

As I’ve detailed over the past several weeks (see here and follow the links), there has been no shortage of litigation over the moratorium — which is better understood as a series of moratoria, started by the Trump administration and sustained by the Biden administration in executive actions, the last of which — prior to Biden’s lawless fiat yesterday — lapsed on July 31.

The challenges fell into two categories. First is the constitutional claim that the federal government lacks the constitutional authority to order a deferral of payments that arise out of intrastate rental arrangements. Second is what’s usually referred to as the statutory claim that, even if Washington theoretically has such constitutional power, Congress did not exercise it in the relevant statute and regulation, such that the CDC is wrong when it claims to be acting under that authority.

This can be confusing because the so-called statutory claim is, derivatively, a constitutional claim.

If Congress has not granted the executive branch the authority that the executive claims to be exercising, then the executive is, in effect, legislating. This is a constitutional offense: Under separation-of-powers principles, the president has no power to legislate. Still, at least initially, we think of this merely as a statutory claim, rather than a constitutional affront, because we presume the president and his administration are acting in good faith. That is, in defending the CDC’s action, the Justice Department was interpreting the relevant statute in a manner that seemed tenable, even if the courts might later determine that it was untenable. This is not an uncommon situation, and we typically give the executive branch the benefit of the doubt that it is simply misconstruing the controlling statute, not willfully usurping Congress’s Article I power to make law.

 

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