Heritage Expert: Eviction Moratorium by Presidential Fiat Blatantly Violates Constitution, Defies Supreme Court

Heritage Expert: Eviction Moratorium by Presidential Fiat Blatantly Violates Constitution, Defies Supreme Court

Aug 4, 2021 3 min read

WASHINGTON— President Biden instructed the Centers for Disease Control Tuesday to issue yet another so-called “eviction moratorium” through October 3, 2021, following the original order’s July 31 expiration. The president issued the edict despite the Supreme Court indicating weeks ago that such action would require congressional mandate. 

Heritage research fellow Joel Griffith released the following statement on the unlawful moratorium: 

“The CDC’s moratorium is precisely the kind of big-government power-grab the pandemic has made federal policymakers more willing to make in recent months. It exceeded powers delegated to the executive branch by Congress, created economic policy through executive fiat, infringed upon the fundamental constitutional right to petition state courts, and creates massive economic certainty for landlords and small-business renters across the country who rely on rent payments to make a living and feed their families. 


“We must be vigilant against attempts to use this crisis as an excuse to further erode private property rights, enlarge federal power beyond constitutional limits, rewrite legislation by executive order, or deny fellow citizens their fundamental right to access the courts, enter into enforceable contracts, and to possess private property. This moratorium is unlawful and unconstitutional.    


“The CDC moratorium is predicated on the Public Health Service Act, which authorizes regulations ‘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’ international and interstate spread of communicable diseases.  As legal scholars at The Heritage Foundation explain, ‘When a broad, vague term follows a list of specifics, that term must refer only to the same sort of things listed before it.’ The localized, limited actions authorized by Congress are not remotely similar to a nationwide ban on evictions.  


“Both the eviction moratorium itself and the CDC’s economic intent unlawfully breach any congressional authorization. Even if Congress had authorized the CDC to enact an eviction moratorium, the moratoria are unconstitutional.  


“Most importantly, any federal law must be ‘necessary and proper for carrying into Execution’ the powers enumerated to the Congress, as stated in Article 1, Section 8 of the Constitution. Even if the regulation of evictions were a power enumerated to Congress by the Constitution --and it’s not) -- banning access to state courts or forbidding a state court from exercising its constitutional jurisdiction over the protection of private property or contractual rights is not a law that is ‘proper.’ In fact, such a ban on accessing the court is itself a violation of one’s right under the First Amendment of the U.S. Constitution to ‘petition the government for a redress of grievances.’ This includes the right to request the court to issue an order for eviction. Regardless of the many other problems with the eviction moratorium, the violation of the necessary and proper clause renders it unconstitutional. 


“Politicians wishing to help those harmed by destructive shutdowns and economic restrictions should instead allow tenants and landlords to access  the more than $40 billion in rental assistance already allocated by Congress to state and local governments. Due to red tape, less than 10% of this aid has been distributed.” 

Griffith’s most recent analysis on eviction moratorium can be found here and his recent congressional testimony on the issue can be viewed here

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