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Why Isn’t the Rent Eviction Moratorium Sparking a Constitutional Clash?

Joe Biden
Image: Creative Commons.

On Tuesday, after prodding from congressional Democrats and with the Biden administration’s blessing, the U.S. Centers for Disease Control and Prevention announced a “temporary” moratorium on evictions of “any tenant, lessee, or resident of a residential property” for nonpayment of rent from circumstances related to the COVID pandemic. A previous nationwide moratorium that was implemented by Congress and repeatedly extended by the CDC expired at the end of July, after the U.S. Supreme Court indicated the agency did not have authority to make the extensions. The new moratorium would likewise seem to fail constitutional muster, though the CDC might argue that it’s different because it only applies to “counties with heightened levels of community transmission” (a category that currently encompasses most of the United States). Besides, the CDC says, the moratorium is necessary to protect public health amidst the pandemic.

This got me to thinking about Scooby Doo.

If you’ve seen the classic 1970s‐​vintage Scooby Doo cartoons, you know the plot: Scooby and the rest of Mystery Inc. come across a series of seemingly supernatural events and, after investigating, find they’re just cover for some very human scheme. And the schemers would have gotten away with it, too, if not for those meddling kids!

So, what’s the Mystery of the Eviction Moratorium? For believers in the romantic, public interest notion of government, benevolent and expert policymakers use careful research and legal reasoning to craft and implement government interventions that improve social welfare. The CDC moratorium seemingly exemplifies this: setting out tenants in a pandemic would increase their risk of infection, which would hurt public health.

But investigating the moratorium reveals some mysteries:

-Landlords only expel tenants if there are prospective (paying) tenants to move into the vacated units. If the original tenants are at heightened risk of COVID from losing their housing, aren’t the prospective tenants also at heightened risk if they don’t find housing? On net, there seems to be the same risk with or without the CDC policy. The moratorium only changes who bears that risk: the original tenants or the new ones.

-Perhaps what worries the CDC is that the evicted tenants could become homeless and either live on the streets or else take group accommodations in a shelter or multi‐​family private home. That’s troubling, to be sure, especially in a pandemic. But what of the new tenants? They could currently be in a shelter, a multi‐​family home, or living in a car. Aren’t they at heightened risk of infection unless they get housing? Again, the moratorium only changes who bears the risk rather than reducing the risk.

-It can be argued that, yes, the CDC’s moratorium only changes the risk‐​bearer, but moving itself increases the risk of infection. Both the outgoing and incoming tenants must move their possessions, and the outgoing tenants must arrange for new accommodations. But housing changes have been occurring throughout the pandemic: the United States is experiencing a housing market boom. Yet, the CDC has placed no moratorium on the buying and selling of homes or on renters voluntarily changing their housing. Wouldn’t these housing changes also create heightened risk of infection?

-Congress has appropriated $46.5 billion to subsidize rent for tenants hurt by the COVID emergency, yet little of that money has been distributed by state and local governments and nonprofits. Instead of another moratorium, shouldn’t the Biden administration focus on removing the government roadblocks obstructing this aid?

-Finally, the CDC and the Biden administration know about the Supreme Court’s position. The Court did decline to issue an order ending the previous CDC extension, but only because it was set to expire. So why would the Biden administration and CDC set up a clash with the Supreme Court?

We can solve these mysteries using public choice theory, the notion that government policymakers are motivated by private incentives just like everyone else. The Biden administration knows that the new moratorium will earn the gratitude of a clearly defined political group: renters. And the policy probably won’t engender much opposition from a less defined group: prospective tenants, even though they will likely end up paying more for accommodations as a result (putting them at risk of future eviction, in which case they will be part of the renters’ political group).

The administration also knows that trying, instead, to get the rent subsidies flowing will take time and likely ruffle public employee unions, an important Democratic constituency. And the administration knows the new moratorium will play well to progressives, who contribute votes and campaign funds to Democratic politicians, but who aren’t fully enamored with President Biden’s center‐​left policies.

Next to those private benefits, why care that the moratorium is an insignificant public health measure that could set off a constitutional clash?

To be sure, evicted families suffer an excruciating ordeal. But nonpayment is lousy for landlords, who have their own bills to pay. And prospective tenants benefit greatly from newly available housing. Under the public interest theory of government, it’s a mystery why policymakers would implement an eviction moratorium.

But thanks to public choice theory, the Mystery of the Eviction Moratorium isn’t a mystery at all. If only there were some meddling kids to bring it to light.

Thomas A. Firey is a senior fellow and managing editor of the Cato Institute’s magazine Regulation. He also is senior fellow for the Maryland Public Policy Institute.

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