It’s not often that a president tries to defend his policies by saying, in effect: Well, look, this is probably unconstitutional, but not definitely unconstitutional, so we thought, why not?
That being approximately Joe Biden’s answer when he was questioned about the legality of the Centers for Disease Control and Prevention’s latest eviction moratorium.
In late June, the Supreme Court declined to lift a stay leaving in place an earlier CDC ban on evictions, which was set to expire in a few weeks. But Justice Brett M. Kavanaugh, the swing vote in the 5-to-4 order, made clear that a further extension was unlikely to be treated so benignly: “In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.” Shortly before the administration’s abrupt pivot this week, presidential spokeswoman Jen Psaki said the CDC was “unable to find legal authority for a new, targeted eviction moratorium.”
Psaki’s new argument is that technically the latest eviction ban is not a nationwide moratorium since it applies to only counties where Covid transmission is significant — that is, about 80% of U.S. counties. This caliber of argument is more typical of college freshmen who forgot the term paper was due. Yet it’s almost compelling compared to the economic or public-health rationale for a continued ban.
An eviction moratorium was good policy for the spring of 2020, when we were trying to keep people inside — and when Covid-19 restrictions were throwing millions of Americans out of work, leaving them unable to make rent. When everything was closed, it was plausible that evictions might become a major vector of infection. But the United States by and large has not been closed like that since last summer. The more people are socializing and working indoors, the less plausible it is that evictions might account for a significant share of new transmissions.
Meanwhile, almost half of jobless workers have been making more than they did while employed. Those making more were mostly the people at the bottom of the income distribution — the same group most likely to face eviction.
But if the case for a moratorium got weaker over time, it became untenable once vaccines were widely available and Americans resumed going about their daily business.
Covid deaths remain well below their peak in previous waves, despite the spread of the delta variant. Data from Israel, the Netherlands and Britain indicate that while case rates may spike during a delta wave, death rates remain relatively low in well-vaccinated populations. And while there are valid worries that the people most at risk of eviction may be less likely to be vaccinated, it’s hard to demand that landlords provide free rent to people who refuse to protect themselves — particularly if other businesses are permitted to stay open.
It’s also hard to argue from an economic perspective, since the decline in deaths has been matched by an upsurge in economic activity. The Labor Department’s Job Opening and Labor Turnover Survey (JOLTS) shows that by May, the economy had more than 9 million unfilled job openings, the highest number since the survey began in 2000, and double the number available as recently as 2014. The unemployment rate in July was 5.4% and presumably would have been lower if job seekers had taken some of the many available positions. If you didn’t think we needed an eviction moratorium in 2014, you shouldn’t support one now.
Of course, unlike in 2014, we already had a moratorium in place, and its expiration would no doubt bring a wave of evictions. That means real hardship for millions of Americans, which no one wants to see. But this was always going to be the case when the moratorium ended. Cities and states have known this was coming since the various moratoriums were imposed, and they have had more than a year to plan. If they’re not ready to help affected residents into new shelter, they never will be. The only way any of this constitutes an argument for further delay is if you think that the moratorium should never end.
A permanent end to evictions is an impractical dream, but at least it’s coherent, unlike the administration’s economically unnecessary, epidemiologically unjustified and arrantly unconstitutional proposal. It’s doubtful, however, that the administration is really looking for a coherent policy. More likely, officials hope to assuage the progressive base by extending the moratorium, then let the court take the blame for killing it.
I’m old enough to remember when it was a bad thing for presidents to knowingly and blatantly violate their oath to uphold and protect the Constitution of the United States. I’m even old enough to remember a time — lo these seven months ago! — when the left responded to such maneuvers with horror, rather than egging them on.
Distributed by The Washington Post Writer’s Group.