Why SCOTUS Ended the Eviction Moratorium

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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40 Responses

  1. Philip H
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    says:

    I tend to focus my ire here in the states that have done so little to get the money out the door that they have, followed by the landlords who are not leaning on the states to get that money. Congress is third in my list – though they put mo yes in the field for folks and have other equally important things to attend to.Report

    • North in reply to Philip H
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      says:

      Yeah this is seriously the fault of the States. The red states that simply are holding it up are hateful but the truly astonishing ones are the Blue states that want to distribute the money but are somehow losing it in their own bureaucracies.Report

      • Brandon Berg in reply to North
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        says:

        Not sure I follow the part about red states being hateful. This is money that’s owed to landlords, and will ultimately go to landlords, right? So Republicans are holding back the money because they hate landlords? If I had to pick one or the other, I’d say that seems more like a (left-wing) Democratic thing.Report

        • Philip H in reply to Brandon Berg
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          says:

          In order for it to get to landlords, most states are requiring renters to apply for the relief and then pay it. Red states are other not setting a process to do it, or as in the case of Mississippi making the process so hard that renters are not bothering. They are also denying applications at a higher rate then blue states, which coincidently matches a history of denying applications for other forms of welfare – even for qualified applicants.Report

          • Oscar Gordon in reply to Philip H
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            says:

            That’s stupid, it should be something the landlord applies for. Why would you put that kind of bureaucratic burden on individual renters?Report

            • Jaybird in reply to Oscar Gordon
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              says:

              Because renters would apply for it if they needed it.

              Landlords? Every single bloodsucking landlord out there would apply, even if they had tenants that paid the rent on time! Parasites, all!Report

            • Rufus F. in reply to Oscar Gordon
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              says:

              I have no experience here as a landlord, but could it possibly be a lot easier for the landlord of some 50 unit building to apply for this than the person who’s renting our a room in their home? Even though both would need it.

              Because it seems like that might be a lot harder to sort that out than just having renters apply with verification that they were laid off.Report

              • Damon in reply to Rufus F.
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                says:

                Never underestimate a bureaucrat to cock up a program if it’s in the best interest of him or the bureaucracy.Report

              • Oscar Gordon in reply to Rufus F.
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                says:

                Maybe the lawyers here will tell me something different, but I figure this would work.

                For every tenant that is claiming they can’t pay rent, you hand them a boilerplate affidavit form to fill out that simply states that they lost their job and can’t pay rent and that they live in unit A and the monthly rent is $X.

                Then the landlord fills out a cover form that basically sums it all up. Perhaps with copies of the relevant leases.Report

              • Dark Matter in reply to Oscar Gordon
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                says:

                If Covid is a special problem for poor people who rent, then I suggest just make vaccination shots free. We could also make various gov hand outs contingent on vaccination status with the obvious exceptions.Report

              • Oscar Gordon in reply to Dark Matter
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                says:

                Things seem to be trending that way…Report

        • North in reply to Brandon Berg
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          says:

          It was a very very shorthanded comment. The assumption is that rental assistance goes to poor renters who’re behind on their rent. Ergo, the assistance is cash to poor people. Ergo conservatives in red states are philosophically hostile to distributing it. That red states aren’t distributing it doesn’t tell us much new- you would expect that from conservative attitudes. I don’t think the argument that the cash will end up with landlords would have much cachet with conservatives.

          Red conservative states not distributing the money makes sense. They don’t want to, so they don’t. Blue states not distributing the money doesn’t make sense. They want to distribute it so why the fish aren’t they? It’s embarrassing.Report

      • Dark Matter in reply to North
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        says:

        So Red is Evil and doing it deliberately but Blue, who is doing exactly the same thing, is just somehow whatever?

        If both sides are doing the same thing then maybe there’s a problem with this level of governmental competence.Report

        • Brandon Berg in reply to Dark Matter
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          says:

          I like the implication that North just can’t believe that Republicans could be as incompetent as Democrats.Report

          • North in reply to Brandon Berg
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            says:

            I feel it’s being charitable. It’s the outcome conservatives say they want and they’re achieving it so surely that implies competence but malevolence. Whereas Liberals surely don’t have a philosophical beef with distributing rental assistance so the only plausible explanation is incompetence.

            It’s possible that it’s just universal incompetence and the outcome just happens to align with conservative philosophy but jumping right to that explanation for red states feels slanted.Report

            • Dark Matter in reply to North
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              says:

              “Conservative philosophy”, in theory, doesn’t like spending other people’s money on your own voters. In practice I’ve noticed they don’t much follow that one.

              The way to bet is incompetence until Team Blue shows that this actually can be done.Report

          • Dark Matter in reply to Brandon Berg
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            says:

            Covid has showcased the gov’s lack of ability to finely manage.

            I’ve had to work from home so my net income has gone up (even including my wife), but the gov has insisted on giving me money.

            My wife lost her job and the gov has insisted on giving her more in unemployment than she got working. And yeah, that made her less willing to go back.

            The gov has insisted on giving my older children money even though they were both students and neither lost any income (I think they both spent less).

            When the gov prevents non-paying renters from being evicted, there’s no way that’s fine tuned to just the “deserving because of covid” non-payers. All we’re doing is deciding that non-paying-renters matter way more than landlords+paying-renters.Report

  2. Saul Degraw
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    says:

    Counter: The Supreme Court overruled the eviction moratorium because there is a majority of six hardline conservartives on the bench who value property rights above all else and think that Lochner was correctly decided. I don’t understand why so many liberal lawyers feel deference towards Supreme Court decisions as automatically being decided on correct legal grounds. Conservatives have no problem using the court as a political branch and establishing the Federalist court packing society. Liberal legal minds seem more willing to march themselves of a cliff than do the same. This tendency needs to end by all means necessary. Conservatives fight with bayonets. We need to do the same.

    This was another of the many abuses of the shadow docket along with the insane decision to let a third-rate judge and right-wing religious zealot hack in Texas control immigration and foreign policy.Report

    • Em Carpenter in reply to Saul Degraw
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      says:

      I don’t assume any decision is automatically correct. That’s why I took the time to read through it, parse it out, and decide whether I agree or not.Report

    • Philip H in reply to Saul Degraw
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      says:

      It has been widely written that a primary objective of Mitch McConnell and his Judge-a-palooza under Trump was remaking the federal judiciary far more business friendly as a way to nullify the liberal regulatory state. This decision does seem consistent with that analysisReport

    • Jaybird in reply to Saul Degraw
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      says:

      Even Biden knew that it was going to be overturned, Saul.

      The court didn’t say “NO! PROPERTY RIGHTS ABOVE ALL!” but “if you want to do this, you can’t do it through the executive. Do it through the legislature”.

      (But I appreciate that you want Trump to have this power!)Report

    • Pinky in reply to Saul Degraw
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      says:

      This is back to the old Russian Olympics judge problem. In matters like law and figure skating, sometimes you’re not going to get what you want. Still, the Democratic-appointed justices nearly always vote in tandem. It’s the Republican-appointed justices who are willing to rule against the party’s positions. It strains credibility to argue that the Republican-appointed justices are the partisans.Report

  3. Oscar Gordon
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    says:

    Concur that this was correctly decided. Too often we tolerate doing things wrong for the sake of expediency, and it’s good to see the court actually call that strike.Report

  4. Brandon Berg
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    says:

    I’d really like to see the Court do their jobs and more consistently crack down on purely pretextual the use of interstate commerce to justify federal intervention. The renting of residential real estate is just about the purest example of intrastate commerce you could find. The fact that some tiny percentage of renters might move to another state if evicted does not make this a legitimate federal issue under the US Constitution, especially given that a) the baseline level of interstate travel is already such that this effect would likely be too small to detect, and b) COVID-19 is already spreading locally in every state.

    There really is no room for reasonable people to disagree here. The unbridled contempt with which Biden, Kagan, Sotomayor, and Breyer are treating their oaths to uphold the Constitution arguably rivals Trump’s.

    Federal overreach aside, I suspect that the idea that evictions meaningfully increase spread of disease is largely pretextual as well. We’re no longer sheltering in place. People are going to work, going to stores and restaurants, even bars and clubs. The public health angle is just a pretext for using the CDC to implement an economic policy.Report

    • James K in reply to Brandon Berg
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      says:

      I agree about the pretext of it – we have restrictions on evictions too, but only at the alert levels where’s you’re supposed to avoid leaving your home.

      It looks like an approach to solving economic and social problems that you see in many countries but seem especially popular in the US – pick a group of people tangentially related to the issue you want to solve and declare they are now responsible for fixing it.Report

  5. Rufus F.
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    says:

    Here, in Ontario, there was a news story that was strangely forgotten in a day in which the Auditor General found that Ontario had “failed to track” $4.4 bil in Covid relief funding that apparently just went missing. Since then, there have been sporadic reports about where *some* of it went- one senior provincial employee embezzled $11 mil. etc. But, I suspect, the federal government will eventually forget about it, as they do with all sorts of fraud.

    Anyway, government corruption, blah-blah. What else is new? My sense here is that the post is right- Congress should have funded relief, money went missing, the Supreme Court made the right call on the eviction moratorium, Congress will now say “Hey, we tried! It’s a packed court!” and then we’ll all forget about it (assuming we’re not among the millions getting evicted).Report

  6. Rufus F.
    Ignored
    says:

    I would like to dissent *very slightly* on this:
    The results of this decision are lamentable, and there will very likely be a wave of evictions to follow. In a dynamic in which people who are fortunate enough to own investment properties are pitted against those who are in danger of becoming homeless, I tend to side with those who will find themselves in the worse predicament. That’s the bleeding heart liberal in me.

    I don’t think this is an exclusively “bleeding heart liberal” stance. The conservative could easily agree this is a lamentable outcome from the standpoint of social stability and maintaining the social contract. Heck, Adam Smith would have seen this as lamentable (and part of what he was warning about in his section on landlords). Really, most of us agree the outcome will be bad.

    But, like you say, the main point remains- the CDC wasn’t the one to fix the situation.Report

  7. Creon Critic
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    says:

    Two sentences in Breyer’s dissent in particular persuade me the majority has it wrong, “The per curiam also says that Congress must speak more clearly to authorize the CDC to address public health crises via eviction moratoria. But it is undisputed that the statute permits the CDC to adopt significant measures such as quarantines, which arguably impose greater restrictions on individuals’ rights and state police powers than do limits on evictions.”

    If “quarantine > eviction moratoriums,” and if the CDC has been granted the power to quarantine, then the CDC has been granted the power to impose an eviction moratoriums; to me, it doesn’t make sense for the CDC to have the greater, more intrusive power but not have the lesser, less intrusive power. If the public health authorities genuinely believe there’s an ongoing public health emergency, it doesn’t make sense that “convene Congress to refine the statutes” is the go-to next step – especially when Congress has already said look to the Surgeon General’s judgement of necessary measures. (And not like the order was arbitrary or capricious, they tailored this moratorium to target the counties that had concerning levels of COVID cases.)

    This whole “government’s interests have decreased” paragraph from the decision is also particularly unconvincing, “As harm to the applicants has increased, the Government’s interests have decreased. Since the District Court entered its stay, the Government has had three additional months to distribute rental-assistance funds to help ease the transition away from the moratorium. Whatever interest the Government had in maintaining the moratorium’s original end date to ensure the orderly administration of those programs has since diminished.” Don’t see how the government’s interests have diminished. Alabama ran out of ICU beds, Alabama was at negative 29 ICU beds late last week (NYT), yesterday Alabama was even further in a deficit of ICU beds (WSFA 12 News), and in this emergency we’re supposed to rate the interests of the Alabama Association of Realtors over the Surgeon General’s judgement? (And unfortunately, it hasn’t been rainbows and roses beyond Alabama. )

    Given the rest of Breyer’s outlining of where the public interest lay, especially the communicability and dangers the Delta variant pose, I think he has the better argument in not second guessing the CDC/Surgeon General/HHS here.Report

    • Jaybird in reply to Creon Critic
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      says:

      That’s the Buck vs. Bell argument.

      We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.

      Buck vs. Bell has not yet been overturned…

      So, Yeah.

      I’m willing to say that there are good arguments for the CDC having this particular power.

      Well, maybe not *GOOD* arguments. But established precedents.Report

  8. PD Shaw
    Ignored
    says:

    I thought the per curium opinion was more moderate than I suspect the majority actually views the moratorium. The conclusion that Congress must pass a law implies that is is the only thing that needs to happen. But I suspect the majority believes that this is not a legitimate exercise of federal power, its claims of mitigating inter-state spread of disease are merely pretextual, but in theory is willing to see Congress speak to the issue.

    There also remains the takings issue. Even if the moratorium is a legitimate exercise of the greater good to private detriment, the courts are going to be looking at whether the private detriment is compensable. I assume in some situations, yes, in others, no.Report

  9. Dark Matter
    Ignored
    says:

    Big picture we’re claiming that evicted renters might spread covid because they don’t have housing.
    Of course the people who would replace them who currently don’t have housing? They don’t spread covid at all.Report

    • Jaybird in reply to Dark Matter
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      says:

      There are a thousand ways to spread covid. There are only two or three ways to not spread it.Report

    • Rufus F. in reply to Dark Matter
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      says:

      The people who move into apartments generally do so from other apartments. Homeless people are usually concentrated in shelters, which have been mass infection sites throughout the pandemic. But they’re out of view.Report

      • Dark Matter in reply to Rufus F.
        Ignored
        says:

        My job moved me from one State to another a few weeks ago. If I’m not allowed to rent because landlords aren’t allowed to make a profit, then what are my alternatives? Live in my car? Hotel? I can’t buy a house.

        It is expected and natural for there to be churn in the rental market.Report

        • Rufus F. in reply to Dark Matter
          Ignored
          says:

          I really said nothing about who should be allowed to rent or any of the rest of that. You said an eviction freeze would shut out people who don’t have housing, which seemingly meant homeless people- and they usually can’t get into rental housing without one windfall or another anyway.

          As for people who can’t move for work without evictions? It seems a bit farfetched, frankly, because even notoriously tight rental markets nearly always have some empty units. I don’t know of any rental markets that won’t have a single apartment to rent unless someone gets evicted. And I don’t imagine the eviction ban also forbade anyone from moving *in*.Report

          • Dark Matter in reply to Rufus F.
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            says:

            One thing I’m saying is if the gov is going to get rid of profit for landlords, then there will be no landlords. That doesn’t need to be an absolute “to zero” thing to be a real problem. “Less rental available” seems like a negative effect.

            Or is the claim here that we can end evictions without affecting the market?

            I don’t know of any rental markets that won’t have a single apartment to rent unless someone gets evicted.

            I got my rental because there is so little housing/rental available that Landlords can (and do) insist on perfect credit scores.

            So true, that’s not “won’t have a single apartment to rent”, but it’s effectively that for people with less than perfect credit scores.Report

            • Rufus F. in reply to Dark Matter
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              says:

              “Or is the claim here that we can end evictions without affecting the market?”

              I guess that’s a question for someone else, possibly the hypothetical person your original comment is aimed at. I’ve already said I think the Supreme Court ruling makes sense.

              Nobody would deny that certain markets are extremely tight at the moment. I know- I live in one too. But, I think nobody’s going to deny that we need to build a lot more housing to fix that. That’s the case even if the pandemic ends tomorrow.Report

            • Michael Cain in reply to Dark Matter
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              says:

              The government, in various forms, seems to be determined for the last 20 years that there will be no such thing as a safe fixed income investment that pays more than the current inflation rate.

              The entire US pension and retirement arrangement post-WWII was based on pension funds making 4% with almost no risk, and 7.5% with only moderate risk, numbers that were typical for centuries.Report

    • PD Shaw in reply to Dark Matter
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      says:

      Technically the claim is that the moratorium is “necessary to prevent the introduction, transmission, or spread of communicable diseases [interstate].”

      The interstate component is the fig leaf from which federal jurisdiction is claimed. Having been traveling to various states on the interstates a lot this month, the notion is pretty silly. We moved our daughter into her new apartment a couple of states away, the interstates are crowded everywhere, but its necessary for people who probably don’t own a car to stay where they are?Report

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