How Can? U.S. DHS: National Eviction Moratorium (Roscoe Filburn Could Not Be Reached For Comment)

by Robert Thomas, Inverse Condemnation, September 2, 2020

In Hawaii we employ a phrase, "how can?" as a shorthand response when you're wondering how something can be. It's easy, short, and more efficient than saying "I'm sorry, I don't understand how you think you can accomplish this."

Thus, "how can?" was our first response when the U.S. Department of Health and Human Services' recently-released agency order establishing a covid response nationwide residential eviction moratorium crossed our desk yesterday. By what authority does the federal government purport to dictate (yes, we're going to use that word) whether state and local governments (and state courts) allow evictions for not paying rent? We thought that property law was one of those local things?

Just as we were about to dive in, our friend and colleague Tony Della Pelle produced an analysis more cogent than "how can?" In "COVID Eviction Freezes - Who Is Supposed To Pay?," Tony asks, "Did the CDC have the authority to issue a sweeping order that affects all Americans in private contractual relationships concerning their rental of housing?" Good question (and again, more eloquent than our "how can?").

We don't have much to add, and we suggest you read Tony's post. Or this from the New York Times with the details of how this national eviction moratorium is supposed to work ("U.S. Orders Eviction Moratorium for Most Through Year's End"). But we will try to add one thing. The order responds to our "how can?" question with this:

The authority for this Order is Section 361 of the Public Health Service Act (42 U.S.C. 264) and 42 CFR 70.2.

Order at 37. So what is this Section 361 authority? Here's what section (a) says:

(a) Promulgation and enforcement by Surgeon General

The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

Hmm. There's no federal "police power" to regulate in the interest of health, safety, welfare, or morals, but as we know, federal power, although supposedly limited, is pretty wide-ranging. Just ask Farmer Filburn about his locally-grown wheat. Is this an exercise of commerce power, tax, defense, or something that is "necessary and proper" in the furtherance of some enumerated federal power, or something else? We guess if the national government can order you to buy insurance, it can prevent owners from seeking to evict tenants for nonpayment in rent? 

And what might this mean? To us, this raises a few points:

• Even if the feds have the authority to do this, state and local governments may be breathing a sigh of relief: thanks to this order, the feds have just stepped up to be the defendant in takings lawsuits and to be on the financial hook for any judgments for eviction moratoria (at least in those jurisdictions that have not adopted more protective restrictions).
• State and local judges, as well as U.S. District Court and regional Courts of Appeals judges might also be silently thanking the DHS. The big money takings lawsuits may no longer be filed in those courts, but in the Court of Federal Claims (with appeals to the Federal Circuit). Bone up on your federal takings law, folks.
• Tahoe-Sierra's rationale really needs a revisit. Can we really say that these restrictions are "temporary," or that the right to collect rent from the defaulting tenants after the motatoria are lifted isn't more illusory than real?

More to come, for sure. Stay tuned.

PDF: Dep't of Health and Human Services, Temporary Halt in Residential Evictions to Prevent the Further Spread o...