Monday, September 21, 2020
Hawai'i Free Press

Current Articles | Archives

Friday, September 4, 2020
How Can? U.S. DHS: National Eviction Moratorium
By Robert Thomas @ 3:46 AM :: 516 Views :: Law Enforcement, Small Business, COVID-19

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...

Links

TEXT "follow HawaiiFreePress" to 40404

Register to Vote

2aHawaii

808 Silent Majority

ACA Signups Hawaii

ALEC

Alliance Defending Freedom

Aloha Pregnancy Care Center

American Council of Trustees and Alumni

AntiPlanner

Antonio Gramsci Reading List

A Place for Women in Waipio

Astronomy Hawaii

Ballotpedia Hawaii

Better Hawaii

Blaisdell Memorial Project

Broken Trust

Build More Hawaiian Homes Working Group

ChinaTownWatch.com

Christian Homeschoolers of Hawaii

Cliff Slater's Second Opinion

Coffee Break

DeedySupport.com

DVids Hawaii

E Hana Kakou Kelii Akina

FIRE

Fix Oahu!

Follow the Money Hawaii

Frank in Hawaii

Front Page Magazine

Frontline: The Fixers

Genetic Literacy Project

Grassroot Institute

Habele.org

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii Coalition Against Legalized Gambling

Hawaii ConCon Info

Hawaii Credit Union Watch

Hawaii Crop Improvement Association

Hawaii Debt Clock

Hawaii Defense Foundation

Hawaii Family Advocates

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii Future Project

Hawaii Gathering of Eagles

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii March for Life

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

Heritage Foundation

HIEC.Coop

HiFiCo

Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Navy League

Honolulu Traffic

House Minority Blog

I Vote Hawaii

If Hawaii News

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

Iowa Meets Maui

Jackson v Abercrombie

Jihad Watch

July 4 in Hawaii

Kahle v New Hope

Kakaako Cares

Kau TEA Party

Kauai Co GOP

Keep Hawaii's Heroes

KeyWiki

Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Malulani Foundation

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Mauna Kea Recreational Users Group

MentalIllnessPolicy.org

Middle East Forum--The Legal Project

Mililani Conservatives for Change

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

Muslim Brotherhood in America

NAMI Hawaii

NARTH

Natatorium.org

National Christian Foundation Hawaii

National Parents Org Hawaii

National Wind Watch

New Hawaiian

New Zeal

NFIB Hawaii News

No GMO Means No Aloha

Northwest Economic Policy Seminar

Not Dead Yet, Hawaii

Now What I Really Think

NRA-ILA Hawaii

Oahu Alternative Transport

ObamaCare Abortion Hawaii

Obookiah

OHA Lies

Opt Out Today

OurFutureHawaii.com

Pacific Aviation Museum

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Pritchett Cartoons

Pro-GMO Hawaii

P.U.E.O.

RailRipoff.com

Rental by Owner Awareness Assn

Republican Party -- Hawaii State

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

Save Dillingham Airfield

School Choice in Hawaii

SenatorFong.com

Sink the Jones Act

Statehood for Guam

Tax Foundation of Hawaii

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

UCC Truths

US Tax Foundation Hawaii Info

VAREP Honolulu

Waagey.org

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii

Yes2TMT