https://www.frontpagemag.com/fpm/2021/08/legally-flawed-eviction-moratorium-richard-l-cravatts/
When queried last week about the CDC’s controversial eviction ban, President Biden seemed intransigent concerning ending the moratorium protecting the nation’s renters. Even though, as he admitted, “The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster,” the administration was going to leave the onerous regulations in place, since, as the President put it, “by the time it gets litigated, it will probably give some additional time while we’re getting that $45 billion out to people who are, in fact, behind in the rent and don’t have the money.”
At issue is a moratorium on evictions put into place in 2020 by The Centers for Disease Control and Prevention (CDC), under Section 361 of the Public Health Service Act, with the intention of limiting the spread of COVID-19 by helping renters stay in their homes. Although the CDC’s order contended that “The ability of these settings to adhere to best practices, such as social distancing and other infection control measures, decreases as populations increase,” critics of the order—including the Supreme Court—have contended that the CDC lacked the authority to impose regulations affecting intra-state relationships between landlords and tenants—commerce overseen by states, not the federal government, and that the order was not only an overreach by the CDC but was unconstitutional as well by violating Fifth Amendment protections. By compelling owners of private property to forgo the collection of rents and lawful evictions, the CDC, as an agent of the government, was implementing what is deemed to be an unlawful “taking.”
The Takings Clause of the Fifth Amendment specifically states that “private property [shall not] be taken for public use, without just compensation,” and while takings are generally of the type when the government takes physical possession of the property (for instance, through eminent domain for a public works project), unconstitutional takings also apply to regulatory takings, as well. In these cases, even though the government does not take physical possession of a private property, the property owner is denied his legal rights of ownership, even if the taking is temporary—as in the case of the eviction moratorium here.
Supreme Court Justice Kavanaugh seems to have acknowledged that the moratorium should not, and will not, prevail after legal challenges when he wrote in his decision that, while the moratorium could be extended long enough for all stakeholders to get their affairs in order prior to its expiration, any further regulation had to come from Congress and from individuals states, not from a federal agency like the CDC without authority for such broad national policies affecting landlords and renters nationwide. “In my view,” Kavanaugh wrote in June, “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”
