The eviction moratorium posed a grave threat to property rights. We own things for a purpose—for some particular use. Those who own rental properties seek to make money from leasing out their possessions to others under contractual terms. When a tenant violates those terms—such as by not paying agreed-upon rent—that person infringes on the owner’s rights. In this case, tenants did so with the coercive aid of the government.
In its rejection of Biden and the CDC’s action, the Supreme Court noted the hardship in which the administration placed owners. The moratorium extension may have done “irreparable harm by depriving [owners] of rent payments with no guarantee of eventual recovery.” Denying recourse to eviction cost owners more than money; the Supreme Court noted “one of the most fundamental elements of property ownership” was “the right to exclude.” When the government dictated who can reside on someone’s land or in someone’s building, that land or building effectively ceased to be the landlord’s own.
For Americans, this violation of property rights threatened more than our ownership of things. James Madison argued that the idea of property undergirded our very understanding of rights. “As a man is said to have a right to his property,” he wrote, “he may be equally said to have a property in his rights.” A right involves a claim, exclusive of others, to something—not just to physical property, but to our lives, liberties and pursuits of happiness. Take away property rights in buildings or other physical property and you also undermine the claim to property we have in these other precious spheres.
In addition to violating property rights, the eviction moratorium violated existing law. The CDC claimed legal support for its action, looking to a 1944 statute as its justification. This law permitted the surgeon general to implement policies “necessary to prevent the introduction, transmission, or spread of communicable diseases” from interstate or international sources. The law then lists several measures the surgeon general may take in pursuit of this purpose. None of these measures is a moratorium on evictions. Instead, after listing options such as “inspection” and “fumigation,” the law adds “and other measures, as in his judgment may be necessary.” The CDC hung its hat on this final, catch-all phrase.
The Supreme Court, however, rightly denied total catch-all status to this statute’s closing clause. Those words certainly gave the surgeon general leeway to implement measures beyond those listed. Yet the listed options indicated the kinds of unlisted actions the government could take. The Supreme Court noted the law had been used in the past for “regulations…limited to quarantining infected individuals and prohibiting the import or sale of animals known to transmit disease”—all consistent with the law’s stated options.
One might be able to connect an eviction moratorium to these pursuits. The Supreme Court, however, correctly saw that doing so would eliminate any limits to the surgeon general’s authority and enable any regulation in the name of protection from disease.
This point should ring especially loudly, given the extensive powers exercised by federal, state and local governments in response to the COVID-19 pandemic. But it also points, as did the property violations, to a deeper and broader problem. To read the 1944 statute as the CDC did would, by destroying all limits on government power, eliminate the rule of law. The text of a statute or a constitution empowers—but it also restrains. That restraint only emerges when the words present some discernible, concrete meaning, not a carte blanche dispensation of authority to government officials.
The Supreme Court should be applauded for ending Biden and the CDC’s deeply misguided policy. The eviction moratorium’s death promises new life, both for our property rights and for the rule of law.
Adam Carrington is the Associate Professor of Politics at Hillsdale College.
The views expressed in this article are the writer’s own.
