As I discussed yesterday, I was astonished by the remarks of President Joe Biden on his support for extending the eviction moratorium, which was found to be unconstitutional by lower courts. It was later preserved by a divided Supreme Court despite the view of a majority that it was unconstitutional. It was saved from being struck down merely by the fact that it was expiring. President Biden acknowledged that his legal experts overwhelmingly told him that any extension would violate the Constitution. However, he then said it was worth extending the moratorium because it would take time for a court to intervene and, in the interim, they could rush out money to renters despite the lack of constitutional authority to do so.
Like many, I was mystified by the Supreme Court decision not to strike down the moratorium. The 5-4 decision in Alabama Association of Realtors v. HHS turned on the fact that it was about to expire on July 31st. Chief Justice John Roberts and Justice Brett Kavanaugh voted to preserve it but Kavanaugh made clear in his opinion that he would vote against any extension as unconstitutional. It was a decision decoupled from the merits. The unconstitutionality of the law was treated as simply inconvenient or irrelevant given the expiration.
In his press conference, President Biden acknowledged that most of the experts consulted by the White House said that an extension would be unconstitutional. However, he noted that he found a few who dismissed or rejected such views: “The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster … But there are several key scholars who think that it may and it’s worth the effort.”
Frankly, given the overwhelmingly liberal makeup of law faculties, it is astonishing that most still told the President that an extension would be unconstitutional. Moreover, it is not difficult to find experts who are cavalier about the Constitution and willing to sign off on any effort to achieve desire political or social results.
What is interesting is that Biden did not appear to accept their view but still thought violating the Constitution would be beneficial in this circumstance:
“There are a few scholars who say it will and others who say it’s not likely to, but at a minimum by the time it gets litigated it will probably give some additional time while we’re getting that $45 billion dollars out to people who are in fact behind on the rent and don’t have the money.”
The President said the quiet part out loud and admitted that they would use litigation as a delaying tactic to spend money without constitutional authority. That line will now likely be repeated at the top of any motion challenging the extension and seeking a temporary injunction.
President Biden’s position not only dismisses constitutional protections but disregards his own presidential obligations.
It was just six months ago that President Biden swore to the following words:
“I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
Chief Justice Roberts did not include an option for unconstitutional acts in the name of a good cause or when convenient. Biden agreed to uphold the Constitution to the best of his abilities.
The Supreme Court has made clear that the extension would be unconstitutional as was the original moratorium. Biden asked the CDC to use the very same authority in extending the moratorium to give him a pretense for the spending of federal money. That does not seem to bother many legal experts. After all, this unconstitutional act would be done for a good cause. Yet, imagine if a Republican president announced that he was told that an order on drilling or subsidizing a religious organization was unconstitutional but would use litigation to get the money out before a court could intervene. The hue and cry in the media and from law schools would be deafening.
Biden came to office declaring a return to the “rule of law” but has actually racked up an impressive array of court losses. Now he is treating a presumptively unconstitutional act as a purely tactical consideration to allow the spending of federal funds. That is not exactly what he pledged before he declared “so help me God” on January 20th.
This so called eviction moratorium is blatantly unconstitutional, for a number of reasons.
As pointed out by Justice Kavanaugh, it at a minimum requires an act of Congress as opposed to a diktat by the CDC.
Secondly, it is an unconstitutional taking, prohibited by the 5th and 14th Amendments. EBT cards are given to people who cannot afford to buy food. The government does not tell grocers to give away food for free, as they are doing to landlords who are compelled to let tenants live without paying rent.
Thirdly, as regards eviction moratoria enacted by state legislatures and local government, they violate the Contracts clause of the Constitution (Article 1, Section 10) in addition to being “taking” proscribed by the 5th and 14th Amendments.
Well done Johnny! That is a great example of what we should expect on a legal blog. Thank you.
Thank you !
Why should the owners of rental properties have to foot the bill, and be impoverished, because state and federal governments shut down the economy?
Because once impoverished, the little guys will be forced to sell their property to hedge funds and REITs?
Scott Greenfield knocked it out of the ballpark where he skewered Lawrence Tribe and called Biden’s presidency rogue.
Normalizing The Rogue Presidency
https://blog.simplejustice.us/2021/08/06/normalizing-the-rogue-presidency/
Once a president goes rogue, the rest is just dickering over price.
I need a little more juice with the federales…
How much is a Hunter Biden original going for these days?
One of the objectives of the CDC (aka “CTC”) diktat is:
To mitigate “the further spread of COVID-19 from one state or territory into any other state or territory”
Based on that objective, I look forward to an *immigration* moratorium.
An eviction moratorium is decreed by the government agency formerly known as the CDC, now known as the CTC — The Centers for Tyranny and Control.
It must be nice to have the power to be so generous — with other people’s property.
“[Private property is] that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”
– James Madison
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“But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
– Declaration of Independence, 1776
_____________________________
Enough!
American citizens are the Sovereign; government is the Subject of that Sovereign.
American citizens aren’t asking the judicial branch, American citizens are telling the judicial branch.
Read and support the literal “manifest tenor” of the Constitution, you buffoons.
Do your single, solitary and sworn duty.
Americans don’t need a court of law for eviction moratoria to be unconstitutional.
Eviction moratoria are innately unconstitutional, malicious and criminal.
The sole entity with power to “claim and exercise dominion” over private property is the owner of the related private property.
Courts, judges and Justices, sympathetic to the plights of parasites, are free to contribute to the charity industry in the free markets of the private sector or otherwise transfer their assets to designated beneficiaries.
The courts, themselves, are unconstitutional, and Justices and judges must be impeached, convicted and severely penalized for abuse of power, usurpation of legislative and executive power, dereliction of duty and treason.
The judicial branch has no legislative or executive power or authority.
The judicial branch must, simply and merely, void all acts contrary to the manifest tenor of the Constitution and Bill of Rights.
That Justices and judges harbor an overwhelming desire for and vigorously seek personal power, does not provide them dominion and omnipotence.
The 5th Amendment right to private property exists, therefore it is absolute.
The 5th Amendment right to private property is a right of citizens, not a right, exerciseable option or possession of the judicial branch.
If the right to private property may be abrogated in part, it may be abrogated in full. and it may not be abrogated in any measure.
If the right to private property is not absolute, it does not exist.
One cannot be half pregnant.
The right to private property cannot be half absolute.
The Constitution does not qualify the right to private property and the right to private property is, therefore, absolute.
Enough!
_______
“…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”
“…men…do…what their powers do not authorize, [and] what they forbid.”
“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
– Alexander Hamilton
Increase the amount of money they get for each child. Extend and increase their unemployment benefits. Give them free housing. Why would anyone in their right mind want to go back to work. The landlords do not want to go out of business so they are just raising the rent for those willing to work to pay their rent. Redistribution of income from one regular guy to another regular guy. It all just fits right into their plan. Smack on forehead followed by a loud duh.
This is worse than the government seizing all rental properties in America. At least then, the owners would no longer have any costs or liabilities associated with them. Instead, the government has “allowed” the owners of rentals to retain ownership, yet they may not collect unpaid rents, or evict tenants. Instead of just helping only those tenants who were directly impacted by the pandemic to pay their rent, they made landlords pay the bills.
Landlords have to pay the mortgages, property taxes, fees, and upkeep on properties so that other people can live there for free. Many people who lost their jobs due to the pandemic are getting more in unemployment than they actually made. Some are making less. Some people still have their jobs, but stopped paying rent because there is an eviction moratorium. The government should have helped people they put out of work to pay their rent and their bills.
This eviction moratorium was the wrong thing to do. Democrats, including Biden, admitted, on camera, that this would not pass Constitutional muster. But they did it anyway. Tell me again, Pelosi, how Republicans create “constitutional crisis”.
This will create a massive rental housing shortage in the long run.
“[A]ny extension would violate the Constitution. However, he then said it was worth extending the moratorium . . .”
That’d be hilarious, if it weren’t so tyrannical: “Yea, it’s wrong. But I can get away with it.”
Spoken like a true serial plagiarist.
Do we live in a Democratic Republic? Does an OATH of office hold any sway as to Honor and Fidelity of the Oath Taker, or is it of no more interest than a fortune in a cookie headed for a waste basket? It appears to me that those currently holding the levers of power have little or no regard for the Constitution, Laws or the citizens of these United States. There is much arbitrary or neglect of enforcement of law cloaked in supposed righteousness (just two examples, the Southern Border influx of illegal immigrants, and the eviction notice by the CDC as of yesterday). If elected, appointed or employed bureaucrats can ignore which ever law(s) they wish we are headed for a very dangerous and dreary future.
President Oath of Office (Article II, Section 1, United States Constitution)
“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.”
——-Oath of office Vice President and members of Congress——
“I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
——Oath of Supreme Court Justices——
“I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.”
IN addition—–28 U.S. Code § 452 – Courts always open; powers unrestricted by expiration of sessions:
“All courts of the United States shall be deemed always open for the purpose of filing proper papers, issuing and returning process, and making motions and orders.
The continued existence or expiration of a session of a court in no way affects the power of the court to do any act or take any proceeding.” This goes directly to the CDC’s ruling yesterday.
——Any individual appointed to an office of honor: ——
This oath does not affect other oaths required by law. 5 U.S. Code §3331 – Oath of Office
“I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
——Military Officers——
“I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.
——Military Enlisted Personnel ——
I, (NAME), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.
——FBI Agents ——
“I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God”
Do we live in a Democratic Republic?
It appears that way. Listing the various oaths would suggest we are a Constitutional Republic, but with the recent SCOTUS ruling that the constitution is subordinate to the will of the majority in power, well that would be the definition of a Democratic Republic. In other words, we are a CRINO; Constitutional Republic in Name Only.
Not applicable, because Democrats…
If the CDC can get involved with rent control, why can’t the department of defense or the education department or any other department declare a moratorium on collecting rents?
Ok folks, I’m a bit confused here.
Isn’t the President of the United States knowingly and intentionally telling his administration to violate the United States Constitution and extend their unconstitutional no eviction moratorium even after the United States Supreme Court has literally told the administration that their eviction moratorium is in direct violation of the United States Constitution, isn’t this “it’s for a good cause” an unethical “ends justifies the means” rationalization and a direct violation of the Presidential oath of office making this action by the President of the United States an actual impeachable offense?
Isn’t intentionally violating the United States Constitution a high crime or has the Constitution truly become just an archaic imposition to our Washington DC leadership, that is when the Democratic Party are the ones in the position of power?
I must be misunderstanding the Presidential oath of office where they swear to “…faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” and how that oath of office relates to breaking our most sacred Constitutional laws.
Please help correct my obvious ignorance as to how this works.
If you can’t pay your rent isn’t that what section 8 housing is for.
Inn wrote, “If you can’t pay your rent isn’t that what section 8 housing is for.”
Possibly, but that’s completely irrelevant to this topic and comes across as a deflection.
Here is the order from the CDC.
https://www.cdc.gov/coronavirus/2019-ncov/communication/Signed-CDC-Eviction-Order.pdf
This is an intentional and transparently obvious abuse of power.
These people have absolutely no respect for the United States Constitution or the United States Supreme Court. They need to be prosecuted to the full extent of the law and I do mean huge fines and long jail terms for INTENTIONALLY and KNOWINGLY violating the United States Constitution!
Furthermore; President Biden ordering the CDC to take this action that’s already known to be unconstitutional is an impeachable offense. Where is Speaker Nancy Pelosi and Rep Adam Schiff to bring down the hammer on President Biden?
No rational interpretation, no reasonable person, would validate such nonsense under the pretext of preventing “foreign persons” from spreading a disease or preventing the spread of a disease through “interstate commerce”.
The only reason these “eviction moratorium” edicts have not just been ignored is that we apparently have had a crop of activists, scaredycats and nincompoops elected to legislatures, county commissions, and judgeships in the last decade or so.
If local judges and sheriffs just went ahead and followed the law, declaring this crap (if even raised by an evictee) as ultra vires and irrelevant, how far do you think an evicted person would get. And what do you think the CDC — or even Congress were it to act — could do about it within any useful period of time. Not much.
Meanwhile, maybe time to get creative, depending on what and where you’re renting, e.g. amend your residential leases to provide that notwithstanding anything herein to the contrary, the landlord is given the irrevocable power of attorney to sublet the premises to additional tenants of the landlord’s choice, i.e. roommates, at any time rent is two or more months in arrears. No “eviction”. No “constructive eviction”.
Outhouse counsel,
“ No rational interpretation, no reasonable person, would validate such nonsense under the pretext of preventing “foreign persons” from spreading a disease or preventing the spread of a disease through “interstate commerce”.
There is a rational interpretation. The CDC CAN prevent people from traveling from state to state if they have a highly communicable disease. Mass evictions force people to travel where they can get housing. That often means going to relatives in other states facilitating the spread of disease. It makes sense to stop evictions from occurring to prevent further spreading of covid.
Landlords get assistance from government, from property tax relief to PPP loans and other programs. They are not being left without income either.
In Oregon landlords are evicting their tenants at 11 months into their leases before they qualify for eviction protection.
Steve Witherspoon, from your link.
“ The Federal government derives its authority for isolation and quarantine from the Commerce Clause of the U.S. Constitution. Under section 361 of the Public Health Service Act (42 U.S. Code § 264), the U.S. Secretary of Health and Human Services is authorized to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states.”
The prevention of people traveling between states during a pandemic falls within its authority by law.
“ Under 42 Code of Federal Regulations parts 70 and 71, CDC is authorized to detain, medically examine, and release persons arriving into the and traveling between states who are suspected of carrying these communicable diseases.”
There’s a reasonable cause to prevent mass evictions from occurring because they are a potentially a large source of spread. By imposing the moratorium it prevents people from moving to other states if they get evicted.
“. . . its authority for isolation and quarantine . . .”
Of *sick* people — not of squatters.
“There’s a reasonable cause to prevent mass [immigration] from occurring because they are a potentially a large source of spread.”
There. Fixed it.
Pelosi and Schiff only get involved when the other side is doing something questionable. Otherwise, scru your constitution. Brought to you by Democrat voters.
President Biden and his CDC, further empowered AOC and the squad at the expense of the constitution. Their action to ignore the Supreme Court and the experts in law threatens all our guarantees given to us in the constitution.
There must be an internal legal opinion supporting this action. It should be published. It is hard to see how any lawyer could conclude in the face of the court decisions and their rationales thus far that the CDC has the authority to take this action. Moreover, it is not clear what authority Congress itself would have to take a similar action, especially without compensation.
Okay “Chris Webber” provide us exactly who you are so we can verify your claimed (or more likely feigned) transparency or quit the virtue signaling. I’ll happily reciprocate once it’s verified. Ball’s in your court. We’ll see if your money matches your mouth and who’s really the cowardly troll.
I’m a bit confused. Why is this even being litigated, rather than just ignored. If state legislatures did not bless any of these “moratoriums” and state law judges and sheriffs just went ahead doing their jobs, who would or could stop them?
Exactly the right approach. Ignore the unelected CDC tyrant and her doddering old boss.
I have thought further about this. I think the Court must draw a line in the sand here, before the evidently unconstitutional acts of this government escalate.The Court can void
the CDC decree and refer the issue to Congress, as they have ruled.. If the Congress wants to continue this policy, they can reconvene, and follow the law. We are very close
to a point where injection mandates will void the autonomy of our citizens, which will be enacted if the Supreme Court is neutralized. I am reminded of ex parte Merryman. Justice Taney stated “…I have exercised the power which the Constitution and Laws confer to me, but that power has been resisted by a force too strong for me to overcome”. We are not at that point yet, but I can foresee a wanton disregard for Constitutional Authority if the Court does not stand up for itself now. This question must be referred back to Congress,
as the Court has ruled.
You don’t really expect the coup plotters to follow the Constitution do you?
They haven’t cared about it so far.
“Frankly, given the overwhelmingly liberal makeup of law faculties, it is astonishing that most still told the President that an extension would be unconstitutional. ”
That’s a little scary to read in view of the fact that these professors are generating our lawyers, judges & legal experts.
“Frankly, given the overwhelmingly liberal makeup of law faculties, it is astonishing that most still told the President that an extension would be unconstitutional. ”
That’s a little scary to read in view of the fact that these professors are generating our lawyers, judges & legal experts.
The fitness of this order presumes the integrity of scientific reporting of the virulence and transmission of the viruses. As it stands, it risks being another Obamacares that shares/shifts responsibility for progressive prices and availability.
That said, the dark irony of [elective] abortionists calling for an eviction moratorium.