Ostensibly, the Centers for Disease Control and Prevention’s moratorium on evictions was aimed at preventing people from being forced into close quarters with other relatives, friends or family who would take them in following an eviction and thus limit the spread of COVID-19.
While the goal may be noble, democracies are not administered by goals, but by policy and law. Goals without the law are empty aspirations.
When it comes to that law, states, the courts and eventually the U.S. Supreme Court ruled that the CDC exceeded its statutory authority to protect public health with its eviction moratorium. Rather than force people out immediately, the court ruled the soon-to-expire moratorium could stay for the next 30 or so days.
However, the court gave an out, as it always does, to anything deemed unconstitutional: Congress could write a law and “constitutionalize” an action, turning a “goal” into policy. It’s not magic; it’s how our country is supposed to have functioned for the last 245 years.
This has always been the purpose of the court: Read the laws as written, determine what is lawful and, if unlawful, tell Congress and the president to do their job and follow the rules they themselves wrote.
With the moratorium expiring at the end of July and Congress finger pointing at the White House, and the White House blaming Congress for its lack of action, the federal government put itself in a quandary of wanting to prevent evictions but lacking any courage to do so.
Unlike COVID-19, the moratorium, the deadline, and congressional inaction are all problems caused by people and — surprisingly [I know!] — can be solved by people.
Note to Congress: Negotiate in a room. Don’t bloviate on Twitter about your nobility while slamming the opposition for being evil. Poor folks packing their kids’ toys into moving boxes don’t give one iota that you “own the libs” or “dump the Trumpers” with a clever hashtag. You’re there to serve us, not bash each other. Self-righteous victories don’t pay rent.
We Americans roll our eyes and wait until the next election when we can hold our noses and vote for the party we hate least, but this inaction involves the lives of real people, especially the poor and those small landlords who only own one or a few rental properties, earning small but steady income while giving the rest of us nice homes to rent.
J.D. Tuccille, at Reason magazine, noted that major real estate investment firms are using the crisis to buy out small landlords and will profit massively when the moratorium ends. Meanwhile, Andrew Perez and Joel Warner, over at Jacobin magazine, reported on the recent huge donations to Democratic political action committees from corporate tycoons and real estate firms giddy about the cash they’re about to make.
It says something when op-eds on websites as diverse as Jacobin and Reason are joined by The New Republic, National Review, The Washington Post, CNBC, The Bulwark and The New York Times to opine that President Joe Biden’s action is unconstitutional, illegal and irresponsible, if not an outright dangerous threat to our democracy. If something is unconstitutional, it is illegal and wholly unconscionable for government officials to ignore. The president really only has one job: To enforce Congress’ laws.
The Trump administration imposed a Muslim travel ban after three tries because its amateurish, jackleg lawyers didn’t understand the Constitution. Biden’s lawyers are just ignoring it. The administration has willingly acknowledged that this new order will not pass constitutional muster — Biden explicitly said so on Aug. 3. Yet the administration issued the order because the White House has less faith in Congress than voters do.
There is no endgame. Congress won’t act despite “more time” to pass a law. SCOTUS will reject the action. States won’t speed up rental assistance programs — they haven’t in 18 months and they won’t start now. Those behind on rent now have a guillotine at the neck ready for the blade to fall whenever SCOTUS decides to issue a fast-tracked injunction or ruling. “More time” is an illusion when one has to pack up their life into a U-Haul. No one wins.
But worse, in three years or seven years, when Republicans take power, they’ll replicate this same strategy of willingly ignoring the law as Democrats twist into knots in some new crisis, perhaps one more fundamentally dangerous to the republic than evictions for poor folks.
If leaders ignore the Constitution and lawmaking, imposing rules by dictate and executive order simply for good PR with their base, then we’ve already evicted the fundamental function of the republic — passing laws by negotiation and majority consent.
Christopher Fox Graham
Managing Editor
