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By emergency edict, CDC purports to ban all residential evictions for nonpayment of rent through Dec. 31 nationwide. Is there some federal law giving the feds anything like this authority, and if so, how constitutional is that law? /1 https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-19654.pdf
It's one thing for the feds to attach strings re: eviction to housing they're involved with financially. This appears to be broader and without that nexus. More (scanty) details here: https://www.reuters.com/article/us-health-coronavirus-usa-renters-idUSKBN25S620 /2
Under the Constitution states have added levers at their disposal such as some discretion over their courts' operation; some have imposed moratoria. A federal ban thru year end would ensure what would amount to an expropriative outcome for some landlords that did no wrong. /3
Property owners have sued against state eviction moratoria already.
MA: https://www.wbur.org/news/2020/07/23/landlords-legal-challenge-eviction-moratorium
AZ: https://coppercourier.com/story/arizona-landlords-say-ducey-coronavirus-eviction-moratorium-unconstitutional/
NY (state wins): https://www.wny-lawyers.com/2020/07/court-rejects-ny-landlords-claims-that-eviction-moratorium-is-unconstitutional/ /4
MA: https://www.wbur.org/news/2020/07/23/landlords-legal-challenge-eviction-moratorium
AZ: https://coppercourier.com/story/arizona-landlords-say-ducey-coronavirus-eviction-moratorium-unconstitutional/
NY (state wins): https://www.wny-lawyers.com/2020/07/court-rejects-ny-landlords-claims-that-eviction-moratorium-is-unconstitutional/ /4
There'll be plenty of time to get into the politics of this purported eviction moratorium, set to carry past Election Day. Is it rude for me to just observe in passing that a candidate I've heard hailed in some quarters as a champion of property rights, maybe.... isn't? /5
One bit of background that reporting sometimes omits: rents have sagged during the pandemic in sought-after cities, especially for other than the largest units. So for owners, you can't charge as much, *and* tenants don't have to pay anyway. /6 https://wolfstreet.com/2020/08/03/rents-swoon-in-san-francisco-other-expensive-cities-and-tx-ok-oil-patch-y-y-but-23-cities-with-red-hot-double-digit-rent-increases/
Per @lietzan, they're "invoking sec. 361 of the PHS Act, 42 USC 264, which authorizes the Surgeon General to issue regs that are "in his judgment...necessary to prevent the introduction, transmission, or spread of communicable diseases [from one State] into any other State..." /7
Readers who imagine that the Takings Clause will serve to rebuff this scheme should realize that the federal courts have been brutally unsympathetic to property owners facing expropriative rent control in NY, CA, and elsewhere. A @CatoOnLaw filing: https://www.cato.org/blog/luxury-mobile-home-parks-dont-need-rent-control /8
OTOH, #SCOTUS has been more open to striking down overreaching regulation when 1) feds overstep limits of interstate commerce power; 2) statutory authority not clear; or 3) rules of administrative law overstepped. Good luck, lawyers pulling all-nighters on each of these! /9
From @SeanTrende: "I was told that if I voted for Clinton there would be massive executive power grabs from which the constitutional order might never recover." /10
Thread on fed eviction mandate and possible lines of challenge: /11 https://twitter.com/proflwiley/status/1300942058463678464
Thread from @normative on the claim of statutory authority. /12 https://twitter.com/normative/status/1300978376551915520
On a question a couple of people were puzzled over. /13 https://twitter.com/proflwiley/status/1300974821602406401
