The looming “eviction crisis” represents a dismal failure of government at nearly every level. The Centers for Disease Controls set renters and landlords alike up for failure when it imposed an unconstitutional eviction moratorium as a way to slow the spread of COVID-19 that has now been declared unlawful by federal courts in Texas, Ohio, and Tennessee.
The state agencies in charge of distributing rent relief dollars have made things worse by failing to get the money to those who need it.
And now the Justice Department is causing confusion by claiming incorrectly that the judgments setting aside the moratorium don’t apply generally—that they only apply to the plaintiffs in the cases.
Let’s look at each of these failures in turn.
There was never any science or logic behind the CDC’s evictions ban. “A temporary halt of evictions can help people who get sick or who are at risk for severe illness from COVID-19 protect themselves and others by staying in one place to quarantine,” the agency reasoned. At the same time, it warned renters that they still owe what they owe—their rent doesn’t go away.
Nor was there ever any constitutional authority for the CDC’s evictions moratorium. That’s what a federal judge ruled in February.
“The federal government cannot say that it has ever before invoked its power over interstate commerce to impose a residential eviction moratorium,” Judge J. Campbell Barker pointed out in his ruling. “It did not do so during the deadly Spanish Flu pandemic. Nor did it invoke such a power during the exigencies of the Great Depression. The federal government has not claimed such a power at any point during our Nation’s history until last year.”
He concluded, “Although the COVID-19 pandemic persists, so does the Constitution.”
In other words, there are real, meaningful, limits to federal power under our Constitution. And pandemic or not, federal courts have a “virtually unflagging obligation” to impose those limits in cases brought before them, as Judge Barker ruled.
That’s why the Texas Supreme Court was right to allow its emergency orders that incorporated the CDC eviction ban to expire on March 31. When federal courts set aside the CDC Order, the Texas Supreme Court no longer had basis to reference a federal rule that no longer was valid.
What’s lost in the media coverage of the evictions crisis is the fact that property owners have bills to pay too. An eviction moratorium leaves landlords holding the bag. And they’ve been hurt. You can read a story about our lead plaintiff in the case, Lauren Terkel, here. Or the story of Diane Velasco, who was forced to sell the income properties she and her disabled husband depended upon here.
In Diane’s words, “I could no longer take on the risk of the two mortgages for my small multifamily properties should my tenants lose their jobs and stop paying rent. So, with an extremely frustrated and heavy heart, I was forced to sell.”
She’s not alone; as CNBC reports, “A federal ban on evictions is putting the squeeze on smaller landlords, who are unable to directly access COVID-19 rental relief funds, and some are starting to sell properties to recoup some losses.”
What could have helped—rental assistance that would have allowed both renters and property owners to keep their heads above water—also represents a failure of government. As the Dallas Morning News reports, “Texas has disbursed less than 1% of the $1.3 billion in federal funding for pandemic rent relief in the program’s first 45 days.” And other states are seeing similar delays.
Let’s not forget that renters, too, are hurt by a “temporary” ban extended again and again. Many are so far behind that they’ll never catch up. Rental assistance could have been done first without ever having imposed an eviction ban.
Smaller landlords can’t afford to keep this up.
“Our analysis finds that 40 percent of residential property units are owned by individual investor landlords,” the Brookings Institution reports. “Among those owning residential investment property, roughly a third are from low- to moderate-income households; property income constitutes up to 20 percent of their total household income. Without rental assistance, tenants and smaller landlords alike will continue to struggle to make ends meet.”
The third failure of government in this mess is the Justice Department’s position that court rulings against the moratorium were limited. The ruling, Justice claims, “does not extend beyond the particular plaintiffs in that case, and it does not prohibit the application of the CDC’s eviction moratorium to other parties.”
That’s not true; there was only one CDC eviction order. When the Texas federal court declared it unconstitutional and set it aside, it did so for everyone, not just Mrs. Terkel and her co-plaintiffs.