Posted on 08/04/2021 5:52:48 AM PDT by MtnClimber
As you may know, during the current pandemic, since the enactment of the so-called “CARES Act” in March 2020, there has been in effect, in various forms, a federal “moratorium” on evictions of rental tenants from their apartments. Thus some landlords have now gone well over a year without getting paid what they are owed, and with no access to any legal remedy.
The most recent version of the “moratorium” expired on July 31 (Saturday). This version had been promulgated by the CDC on its own authority, without specific authorization from Congress. On Sunday (August 1) the Democratic Congressional leadership called on President Biden to extend the moratorium. From The Hill, August 2:
Top House Democrats on Sunday called on the Biden administration to extend the eviction moratorium amid the coronavirus pandemic, hours after the ban expired, putting millions of Americans at risk of being forced out of their homes. “Action is needed, and it must come from the Administration. That is why House leadership is calling on the Administration to immediately extend the moratorium,” Speaker Nancy Pelosi (D-Calif.), Majority Leader Steny Hoyer (D-Md.), Majority Whip James Clyburn (D-S.C.) and Assistant Speaker Katherine Clark (D-Md.) wrote in a joint statement.
Wait a minute: They’re saying that Congress has passed no law specific to Covid-19 calling for this eviction moratorium, and yet the leaders of Congress are demanding that the President just enact it on his own authority? Is that how this is supposed to work?
And it gets even worse. It seems (from the same article in The Hill) that on July 29 (Thursday) the President had called on Congress to enact an extension of the moratorium, but Congress had adjourned without doing so.
The subject of this eviction “moratorium” provides an excellent illustration of the ongoing destruction of the Constitutional separation of powers through the means of broad Congressional delegations of authority allowing executive agencies to seize and exercise the legislative function. Both the Trump and Biden administrations were fully complicit In this instance of the perversion of constitutionally-designated roles. Although the courts over the years have consistently fallen down on their responsibility to enforce the separation of powers, here things got so out of control that the courts may finally be stepping in to rein things back, at least in this one instance.
A history of the various “moratoriums” on evictions during the pandemic, and the legal challenges to same, can be found in the DC District Court’s May 5 decision in Alabama Association of Realtors v. United States Department of Health & Human Services. Here is an abbreviated version of the history:
-The CARES Act, enacted March 27, 2020, provided for a 120 day moratorium on evictions, but only with respect to rental properties that participated in federal assistance programs or were subject to federally-backed loans. That moratorium expired on July 25, 2020.
-On August 8, 2020, then President Trump issued an Executive Order directing the Director of the CDC to consider whether a measure “temporarily halting residential evictions” might help “prevent further spread of Covid-19.”
-On September 4, 2020, CDC issued an Order with the title “Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID-19.” That Order purported to direct that landlords “shall not evict” any “covered person” during the term of the Order. Unlike the Congressional provision in the CARES Act, this Order applied not just to federally subsidized housing, but rather to all residential properties nationwide. The Order’s original expiration date was December 31, 2020.
-By the 2020 Consolidated Appropriations Act, Congress extended the CDC’s Order to January 31, 2021.
-CDC itself, now under President Biden, without further Congressional action, then extended its moratorium Order first to March 31, and then to June 30 and July 31.
Under what possible authority could CDC have thought it had the ability to issue eviction moratoriums like these by its own say-so without specific Congressional authorization? The CDC claimed to find the power in Section 361 of the Public Health Services Act of 1944. Here is the relevant text:
The [Secretary of HHS] 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 [Secretary] 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.
If you read the first sentence by itself, there would seem to be no limits whatsoever on what HHS (and its sub-agency CDC) can do to order people around supposedly in the cause of “preventing the introduction, transmission, or spread of communicable diseases.” Mask mandates? Stay at home orders? Travel restrictions? How about ordering all business to cease?
Or does the second sentence qualify the first, such that the only legitimate orders that CDC or HHS can issue under this statute are orders dealing with things similar in nature and kind to the listed examples of “inspection, fumigation, disinfection, sanitation, pest extermination, [or] destruction of animals or articles . . .”?
The breadth of the CDC’s eviction moratorium, combined with its tenuous relationship to preventing or slowing the spread of the disease, led to a flurry of litigation challenging the Order. The DC District Court’s May 5 decision lists five other cases seeking to enjoin the CDC, arising from Tennessee, Ohio, Georgia, Louisiana and Texas. In at least two of those cases the courts had issued injunctions against the CDC Order, and the DC District Court joined them. But then the DC District Court “stayed” its preliminary injunction, meaning that it allowed the CDC Order to remain in effect while the litigation continued, potentially for months or years. That led the plaintiff landlords and realtors to go to the DC Circuit, and then to the Supreme Court, to seek to get the “stay” removed so that the injunction could take effect.
At the Supreme Court, Chief Justice Roberts and the three liberals voted to leave the stay in place — and thus allow the CDC eviction moratoriums to remain in effect for as long as the CDC should decide to continue them. Justices Thomas, Alito, Gorsuch and Barrett voted to vacate the stay (and thus end the moratorium immediately). Justice Kavanaugh, who voted with the liberals, wrote a brief concurrence, of which this is the key line:
In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.
The key takeaway is that for the three liberals (Breyer, Sotomayor and Kagan) that one vague first sentence from 1944 is completely sufficient to allow the CDC to assume complete dictatorial powers over the entire economy.
Kavanaugh is so weak. The history of the SCOTUS is so replete with spineless, corrupt jellyfish like Kavanaugh that it seems clear that this is one branch the founders somehow designed incorrectly.
A vote of no-confidence on the part of the various governors of all the states should have been included as a means to remove bad/incompetent SCOTUS black robes.
Too bad they don’t know many of the serfs are property owners and Americans.
Now if we could just get the GOP-e to realize it, this could be a valuable weapon in the battle against the Communists.
If you have a rental property and it isn’t paid off, you are setting yourself up for fail. They are doing this to assist their buddies. You are the target, your wealth, you are under attack.
The buy up of property by the elite groups is out there.
https://www.housingwire.com/articles/investors-are-buying-up-single-family-homes-across-the-us/
When Trump was in office, lefties managed to find a federal judge within days (California or Hawaii come to mind) to overturn whatever EO he signed.
Same needs to be done here. But it will languish in the court for a year or so.
I like how you approach and solve problems.
4. Find fleas in the house and tell tenants they must leave the apartment for three days every week for the next three months while you drop flea bombs every Monday morning.
“Over 11 million adult renters are behind on their rental payments”
It might be possible to expand the Treasury Offset Program.
“The Treasury Offset Program is a centralized offset program, administered by the Financial Management Service’s (FMS) Debt Management Services (DMS), to collect delinquent debts owed to federal agencies and states (including past-due child support), in accordance with 26 U.S.C. 6402(d) (collection of debts owed to federal agencies), 31 U.S.C. 3720A (reduction of tax refund by amount of the debts), and other applicable laws. FMS disburses federal payments, such as federal tax refunds, for agencies making federal payments (known as “payment agencies”), such as the Internal Revenue Service. ‘Creditor agencies,’ such as the Department of Education, submit delinquent debts to FMS for collection and inclusion in TOP and certify that such debts qualify for collection by offset.”
https://www.treasury.gov/services/report-fwa/Pages/treasury_offset_program.aspx
Perhaps treat past-due rent in the same manner as past-due child support.
I would not want to own rental property in any state controlled by Democrats. The exception would be seasonal vacation rental property. For example, a buddy owns a house in Maine he rents by the week in the summer. He lives in it in the off season. The summer rental pays his mortgage for the entire year. He keeps one week in the summer for his family.
If you choose to own rental properties in states like MA, NY, CT, CA, WA and other very liberal states the government will eventually side with your tenant in a problem.
“course of action”
Landlords have to be very careful.
As there are more tenants than landlords, the law favors tenants.
Perhaps:
Lease
....
The front door and its supports are not part of the property leased to the tenant. The tenant may carefully open and close the landlord’s front door when the door is not otherwise in use by the landlord.
Sounds to me like the Takings Clause might be in play if he tried it.
Know that Florida gets lots of highly defective people from northern states.
We have thieving communists in charge.
If they can take what they might consider excess property without getting shot, they will, it is only a matter of time.
FWIW, the design of course has weak spots and compromises that made sense at the time.
But no system, not even the hypothetical perfect one, can survive corrupt execution.
I’d prefer an imperfect system run by honorable people who understand and respect the limitiations inherent to government and law. That isn’t in the cards.
I doubt there is a federal court in the land that is opposed to the liberal direction. The legal industry is run by liberals, the courts are run by liberals, etc.
BINGO
NO.
It’s not a moratorium.
No part of any government has the right to do this. No executive order, no law, no regulation, no decree. Nothing. This action is illegal, wrong, and unconstitutional.
I know and you know that there will be nothing that will stop it. That party of spineless wimps, the Republicans, is doing nothing. It will be extended.
Owners are being unjustly deprived of what they have a right to.
But it will be worse. This isn’t going to be a two month thing. It will be extended. The marxists want it to be permanent.
Is there any reason for hope?
“Justice Kavanaugh, who voted with the liberals...”
What a total disappointment this gutless wonder has been!
I used to think Kavanaugh was treated unfairly. But I’ve changed my mind, he serves the loathing he got.
He is rolling the dice. If he ever gets to a point where nobody can travel, and nobody has to pay, then he has to foot the bill. I’d say pay off any secured debt if you want to keep the property. They can repo my truck, but my house isn’t up for grabs.
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