by Bob Barr
In the most recent and clearest sign yet that the Biden administration has not the slightest regard for the Constitution or the Supreme Court of the United States, the Centers for Disease Control (CDC) has issued another ban on the ability of landlords to evict renters who fail to meet their rental obligations.
Issued on August 3, the CDC’s latest move to void rental contracts for at least two more months is fraught with constitutional error, but such problems are of little importance to this administration because, in the view of CDC Director Rochelle Walensky, it “is the right thing to do.”
“The right thing to do” has become the justification for many modern presidents to sweep aside the foundational constitutional principle that the powers of the federal government are, in the words of Founder James Madison, “few and defined” and do not include mass voidance of lawful private contracts.
The zeal with which Biden is taking advantage of the so-called COVID “emergency” to extend the powers of the federal government into areas in which it has no proper responsiobility, puts his predecessors to shame. One of this administration’s favored tools, but certainly not its only one, is to issue orders prohibiting landlords from evicting renters. The argument put forward in support of this dictatorial power is that allowing landlords to enforce rental contracts will dramatically exacerbate the spread of COVID.
The government’s argument that evictions will lead to “new spikes in [COVID] transmission” is premised on the self-proclaimed notion that evicted renters necessarily will move into “congregate settings where COVID-19 spreads.” In the further opinion of the CDC director, such a presumed trend would be “very difficult” if not impossible to reverse, therefore justifying swift action by the CDC.
The CDC’s August 3 order broadly covers renters who earn no more than $99,000 per year ($198,000 for joint tax filers) and who, though using their “best efforts” to meet their contractual rent obligation, have failed to do so. The only real limitation on how many such renters are thus protected is that they must reside in a county with a “substantial” or “high” rate of COVID transmission. This limitation, however, means little in light of the fact that according to the manner by which the CDC measures such transmission rates, nearly 88% of all counties in the United States fall into these two categories.
The administration highlights the increased transmissibility of the recent “delta variant,” but the CDC order conveniently fails to mention that this variation of the initial COVID-19 virus has a substantially lower mortality rate than its predecessors. Also ignored are the facts that COVID vaccines now are universally available, and that current medical knowledge about how to treat infected individuals has made this variant far less lethal than earlier variants.
Facts are of little consequence, however, to an administration eager to show its extreme socialist base that it is fully committed to implementing measures wholly at odds with constraints placed on it by the Constitution. To this president, abrogating the right to enforce lawful contracts between landlords and renters is but a means to an end.
Unfortunately, on June 29 the CDC was aided in its drive to exercise dictatorial powers over property rights and the right to contract by the Supreme Court itself. In a split 5-4 decision, the High Court set aside a lower court finding that the CDC had exceeded its lawful authority in issuing its earlier eviction ban. Trump appointee Brett Kavanaugh sided with the four “liberal” justices to allow the CDC to continue with its unconstitutional activity, simply because in his view the ban would end on July 31. Kavanaugh did at least concede that “clear and specific” legislation would be necessary for the CDC’s ban to continue beyond that date, but he did vote to allow the lawlessness to continue.
July 31 has come and gone. Congress has not passed legislation authorizing an eviction moratorium. And the Biden administration has thumbed its nose at the Supreme Court by directing the CDC to issue another unconstitutional eviction ban.
It remains to be seen whether the Court will have grown the necessary constitutional backbone before this ban expires in October. If not, and even if the Democrat-controlled Congress passes such a ban, the administration will have successfully driven another three-penny nail into the constitutional coffin.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.