If Congress Wants an Eviction Moratorium, It Needs to Pass One

For too long, they legislative and executive branches have abdicated their responsibilities.

In a major victory for constitutional norms, the Supreme Court overturned a lawless and essentially authoritarian policy of the Trump administration, and progressives are furious.

You read that right.

Let’s catch up. On March 27, 2020, Congress passed the CARES Act, and Donald Trump signed it into law. One provision of the massive $2.2 trillion legislation imposed a temporary ban on evictions for renters in response to the economic hardships caused by the pandemic. The case for the moratorium at the time didn’t rest on public health, but on the fact that the country was heading into a lockdown. Asking people to pay rent when they were told they couldn’t go to work didn’t make a lot of sense.

When the ban expired, long after the lockdowns ended, Congress opted not to extend it. So, with much self-congratulation, the Trump administration’s Centers for Disease Control and Prevention issued an eviction moratorium of its own, this time under the dubious pretext of stopping the spread of COVID-19. That moratorium extended into the first months of the Biden administration.

In June, the Supreme Court ruled that the CDC didn’t have the authority to nullify rental contracts across the country, but if Congress wanted to pass a law to continue the policy, as it had under the CARES Act, it could.

Congress declined. Instead, leading Democrats asked Biden in effect to defy the court and just do it again. At first, the White House said it couldn’t because that would be unlawful. But then Biden did it anyway, admitting he was doing it just to buy some time and violating his oath of office in the process.

As expected, the court blocked the ban last week.

“Last night, the Supreme Court immorally ripped away that relief in a ruling that is arbitrary and cruel,” House Speaker Nancy Pelosi (D-Calif.) said in a statement the following day.

Rep. Jamaal Bowman (D-N.Y.) denounced the decision by a “Republican-packed Supreme Court” that he says will “put millions of people in danger.” Rep. Ayanna Pressley (D-Mass.) declared on Twitter, “The Supreme Court is on the wrong side of history in the midst of this crisis.”

White House press secretary Jen Psaki said in a statement that the administration is “disappointed” with the ruling, which it knew was coming.

I think the conservative majority wasn’t nearly as “extreme” as it should have been. Justice Brett Kavanaugh, in his July ruling, had told the administration it couldn’t do this unilaterally. The president responded in bad faith. The court should have read him the riot act.

Moreover, the very idea that a politically appointed bureaucrat has carte blanche to do whatever he or she wants simply by invoking a crisis is a profoundly dangerous principle. You’d think Democrats, after four years of fretting over Donald Trump as a would-be dictator and his various assaults on democratic and constitutional norms, would have some appreciation of this.

Personally, I’m not convinced that even Congress has unbridled power to negate millions of legal contracts and abrogate property rights indefinitely. The unsigned ruling didn’t address this idea, which is at least a debatable proposition. Indeed, the court’s majority took no position on the policy at all. Rather, it said: “If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.”

And this is what is so infuriating about the attacks on the court. For decades, the legislative and executive branches—under Democrats and Republicans alike—have refused to do their jobs as outlined in the Constitution. They behave like children, whining about what policies they want, but they are unwilling do the work to get them. Then, when the Supreme Court behaves like a grown-up, preventing this administration or that one from ruling like monarchs, politicians complain about that, too. Worse, some see the court doing its job as an argument for packing it with pliant enablers of this dysfunction.

The most dismaying thing about the court’s decision isn’t the utterly reasonable majority ruling, but the minority’s dissent, written by Justice Stephen Breyer. The court’s liberals believe that unless Congress explicitly denies the CDC’s power to do something, the court should assume the executive branch can do whatever it wants. Imagine the reaction if the Trump administration made this kind of argument.

People wonder why our institutions are suffering from a crisis of legitimacy, when the answer is obvious: Our elected leaders would rather whine and cast blame than do the jobs they were elected to do.