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Trump’s Eviction Moratorium Could set a Dangerous Precedent

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Reason.com - Free Minds and Free Markets

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On Saturday, the federal government’s Center for Disease Control will issue a new regulation barring eviction of millions of residential tenants around the country. If it survives likely legal challenges, the new policy would set a dangerous precedent undermining federalism, the separation of powers, and property rights. Conservatives, in particular, will have reason to regret it when a Democratic president inherits the same sweeping powers.

The CDC policy bars eviction, until the end of the year, of any residential tenant who makes a sworn declaration to the effect that they 1) have “used best efforts to obtain all available government assistance for rent or housing,” 2) they expect to earn less than $99,000 ($198,000 for joint tax filers) in 2020 or did not have to report any income to the IRS in 2019, or received a stimulus check under CARES Act, 3) “the individual is unable to pay the full rent… due to substantial loss of household income… , a lay-off, or extraordinary out-of-pocket medical expenses” 4) “the individual is using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit” and 5) “eviction would likely render the individual homelessor force the individual to move into and live in close quarters in a new congregate or shared living setting.”

These rules could potentially apply to a wide range of people. The income cutoff of $99,000 for an individual taxpayer is far above the national poverty line, and indeed far above the median national household income of 61,937. (which includes numerous multi-person households). The requirement that the eviction “would likely render the individual homelessor force the individual to move into and live in close quarters in a new congregate or shared living setting” could potentially apply to any situation where the evicted person ends up living in a new home with at least one other person. Having a roommate (including a family member) surely counts as a “shared living setting.” Thus, the measure would protect from potential eviction large numbers of people who are clearly not poor, and would not end up homeless if evicted.

Such sweeping action by the executive normally at least requires authorization by Congress. As co-blogger Josh Blackman explains, the claimed authorization here is 42 CFR Section 70.2 a regulation that gives the Director of the CDC the power to “take such measures to prevent such spread of the [communicable] diseases as he/she deems reasonably necessary, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.” The CDC can take such measures anywhere it deems local and state regulations to be “insufficient” to limit the spread of disease across state borders.

Section 70.2 is itself just a regulation, not a law enacted by Congress; so there may be some question as to whether it itself has legislative authorization. Assuming Section 70.2 does have such authorization, the Administration may be overreaching when it claims that it permits a sweeping nationwide eviction moratorium.

As Josh notes, the possible measures listed in the regulation—”inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection” are all relatively narrowly targeted policies focused on specific sources of infection, not wide-ranging nationwide regulations that apply regardless of how much danger there is in the particular location. Esjudem generis, a standard canon of legal interpretation, requires that a list of items in a law should be interpreted as being “of the same kind” as others on list. Here, everything on the list seems to be relatively limited in scope. Thus, the regulation only permits narrowly targeted, localized restrictions.

On the other hand, the administration can argue that these specific examples are just meant to be illustrative and all they really have in common with each other is that they are all examples of measures that might be thought “reasonably necessary” to limit the spread of disease. On that theory, Section 70.2 would allow the CDC to impose almost any regulation it wanted, so long as there is some minimally plausible argument that it would limit the spread of a communicable disease.

And note that, under the text of the regulation, the CDC need not prove that the regulations in question really are “reasonably necessary” or that state restrictions really are “insufficient.” They need only assert (“deem”) that such is the case.

This broad interpretation of the regulation would give the executive the power to restrict almost any type of activity. Pretty much any economic transaction or movement of people and goods could potentially spread disease in some way. Nor is that authority limited to particularly deadly diseases such as Covid-19. It could just as readily apply to virtually any other communicable disease, such as the flu or even the common cold.

Every year, thousands of people die because of the flu, and restrictions on mobility or on economic and social activity could be seen as “reasonable” ways to limit its spread. 42 CFR Section 70.1 (on which the definition of disease in Section 70.2 is based) in fact defines “communicable diseases” as “illnesses due to infectious agents or their toxic products, which may be transmitted from a reservoir to a susceptible host either directly as from an infected person or animal or indirectly through the agency of an intermediate plant or animal host, vector, or the inanimate environment.” Notice that this applies to any disease spread by “infectious agents,” regardless of severity. The flu and the common cold clearly qualify!

If Trump can use this authority to impose a nationwide eviction moratorium, Joe Biden (or some other future president) could use it to impose a nationwide mask mandate, a nationwide lockdown, or just about any other restriction of any activity that could potentially reduce the spread of the flu, the common cold, or any other disease.

Such virtually limitless executive authority to impose restrictions and mandates would make a hash of the separation of powers, enabling the president to circumvent Congress’s authority on a massive scale. It also would completely undermine any semblance of “nondelegation” restrictions on grants of power to the executive. If Section 70.2 is authorized by Congress and has the broad scope the administration claims, it would virtually gut nondelegation. If Congress can delegate the power to suppress virtually any activity of any kind, so long as the CDC claims that doing so is “reasonably necessary” to reduce the spread of disease, it is hard to see how any meaningful limits on delegation would remain.

There are similar problems with the administration’s ultrabroad interpretations of statutes delegating power over immigration and trade. But extending such arguments to the suppression of purely domestic economic and social activity further exacerbates the danger.

The administration’s position threatens federalism, as much as separation of powers. If the executive can suppress pretty much any type of local activity so long as the CDC claims that it risks transmitting contagious diseases and state law is “insufficient,” it can intrude in numerous areas of public policy that would otherwise be left to state or local control. At the very least, displacement of state or local power by the the feds would require congressional legislation, not just executive whim. Conservatives who may think such power can safely be entrusted to Trump will not be happy the next time a Democrat wields it, as could well happen as soon as next January.

A sweeping nationwide eviction moratorium is also a massive infringement on private property rights. Landlords may be stuck holding the bag for numerous tenants who refuse to pay. This is yet another addition to the Trump administration’s already terrible record on property rights.

Josh Blackman posits that Congress will eventually enact legislation compensating landlords. But it is far from clear that will actually happen, and especially if it will happen fast enough to keep many smaller landlords from falling into dire financial straits. The same goes for efforts to recoup unpaid rent from tenants when the moratorium ends.

Moreover, whoever wins the presidential election might have strong political incentives to extend the moratorium for months to come. After all, the broad power implied by the administration’s interpretation of Section 70.2 does not impose any time limits, or any limitations based on the severity of the disease threat the regulations are supposedly combating. Even after a Covid vaccine is discovered and deployed, the administration could potentially argue that continuing the moratorium is necessary, because the vaccine may not be 100% effective, and thus some disease risk remains

Landlords could potentially recoup their losses by filing lawsuits under the Takings Clause of the Fifth Amendment. In my view, this sort of measure probably should be considered a taking. But courts have been reluctant to rule that state-imposed rent moratoria are takings, and the same deference is likely to be applied to a federal policy.

The administration’s immigration restrictions are currently being challenged on nondelegation grounds, and similar lawsuits will likely be filed against the eviction moratorium. Hopefully, the plaintiffs will prevail in both cases. That may be the best prospect for overturning this measure in court.

Alternatively, the canon against interpreting statutes in ways that “raise constitutional problems” will lead courts to interpret Section 70.2 and its authorizing statute narrowly, thereby invalidating the moratorium, but preserving the statutes and regulations as sources of authority for more narrowly targeted public health measures.

Some might argue that this action will not set a dangerous precedent because the authority to impose moratoria and other restrictions created by Section 70.2 is given to the head of the CDC, an expert agency that is supposed to be guided by scientific evidence, not political or ideological imperatives. But the CDC is hardly immune to political pressure from the president and other politicians, as shown by a variety of instances where the Trump administration has bent the agency to its will. It is likely that political pressure played a significant role in this policy, as well. Moreover, even the most expert bureaucrats often have political agendas of their own. Rarely, if ever, is there such a thing as “public health” policy determined purely by technical scientific considerations without reference to morality or ideology.

Finally, it is worth noting that this sweeping moratorium is unnecessary, as well as illegal. There is no massive eviction crisis in the United States. To the contrary, eviction rates have been below normal levels since the start of the Coronavirus crisis in March, as was also true during previous recessions. And that has been the case even in areas where there are no local eviction moratoria. Barring extreme malfeasance of some kind, most landlords do not want to evict tenants during an economic crisis, if only because they know it will be hard to get new ones able to pay as much or more.

If the federal government nonetheless imposes sweeping eviction moratoria, that will incentivize landlords to raise rents or take on fewer tenants in the future, in order to guard against such policies. That will predictably reduce the available housing stock for tenants, especially the poor. The same goes if landlords have to leave the industry because they go bankrupt or otherwise lose large amounts of money.

To the extent that some kind government assistance for needy tenants is desirable during an economic crisis, it is best-provided in the more targeted form of subsidies for poor tenants who otherwise cannot pay, not sweeping eviction moratoria that apply to millions of non-poor tenants, and leave landlords holding the bag.

UPDATE: I have made a few minor additions to this post.

 

 

 

 

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Sanders and Schumer call on McConnell to hold hearings to fight election conspiracy theories – KTVZ

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Sanders and Schumer call on McConnell to hold hearings to fight election conspiracy theories - KTVZ

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Sen. Bernie Sanders of Vermont and Senate Democratic Leader Chuck Schumer of New York are calling on Majority Leader Mitch McConnell to create a new bipartisan committee focused on election integrity and schedule hearings to reassure Americans over a process President Donald Trump has repeatedly sought to undermine.

There is growing anxiety among Democrats, and some Republicans, that Trump will not only continue to sow doubt over the legitimacy of the coming election but throw the subsequent count into chaos by declaring victory before all the votes can be tallied, including the millions that will arrive by mail.

In a letter to McConnell, Sanders and Schumer quote back the Kentucky senator’s own words, in which he attested to the reliability of mail-in voting by citing its successes in Oregon, Washington and Colorado, which have been using the system for years.

Trump has repeatedly questioned the validity of mail-in voting, promoted conspiracy theories questioning election security, called on supporters to act as unsanctioned “poll watchers,” and suggested that the absence of a clear result by the evening of November 3 would in some way cast doubt on the eventual outcome. Key allies in powerful positions, like Attorney General Bill Barr, have followed suit. Barr has persisted in puffing up a debunked claim that ballots received by mail would somehow strip the sender of their privacy — ignoring well-established safeguards.

By escalating the matter now, Sanders and Schumer are responding to growing concern, in partisan and nonpartisan spaces, that Americans are not adequately prepared for the potential of a longer-than-usual wait for results or Trump’s willingness to short-circuit the democratic process if he smells defeat.

“Democrats and Republicans in Congress must come together to ensure that we have a free and fair election where every vote is cast and counted without intimidation,” Sanders told CNN, “where no one has to put his or her health in danger to cast a ballot, and where we have full confidence in the results.”

The proposed hearings would invite a cross-section of election officials from across the country to testify to the security and reliability of mail-in, early- and in-person voting — subjects on which Sanders and Schumer, again, referenced McConnell’s own words.

“Despite the clear security of our vote-by-mail system, some have continued to undermine it with unsubstantiated claims of voter fraud,” they wrote. “As you have correctly said, people ‘can vote early, you can vote on Election Day, or you can drop it in the mail,’ and that voters should ‘not worry about your vote not counting.’”

The minority leader and Sanders, an independent who caucuses with the Democrats, also want more detailed discussion about the fraught hours, or days, after the polls close and a real-time watch of the election horse race potentially swings from one candidate to another.

“We know a number of states may well be counting ballots for a period of time after Election Day, and that those votes may be determinative in this election,” the senators wrote to McConnell. “To avoid disinformation, conspiracy theories, and suspicion about results, we must understand the likely timeline for this process.”

The letter goes on to reference the recent war games-style preparations conducted by a group called the Transition Integrity Project, a bipartisan gathering of operatives and academics that made headlines when some of the outcomes of their exercises — including “both street-level violence and political impasse” — were reported on in late July.

“A bipartisan group of experts and officials have studied multiple scenarios where the outcome of the election was not immediately known. Some of these scenarios resulted in unrest and even violence,” Sanders and Schumer wrote, suggesting the Senate should elevate similar discussions and familiarize the public with the uncertainties ahead. “We would like to hear from the most knowledgeable people in the country as to how we can do everything possible to make sure that the election and the period afterward is secure and peaceful.”

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HHS official sorry for conspiracy theory video

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HHS official sorry for conspiracy theory video

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HHS supported Caputo, with a statement that called him a critical, integral part of the presidents coronavirus response, leading on public messaging as Americans need public health information to defeat the COVID-19 pandemic.

There was no immediate statement from the White House.

Attempts to reach Caputo were unsuccessful.

On Capitol Hill, Sen. Patty Murray, D-Wash., called on Azar to fire Caputo, accusing the spokesman of trying to interfere with CDC reports to the medical and scientific community, as well as the public at large. And Senate Minority leader Chuck Schumer, D-N.Y., called on Azar himself to resign, citing interference with the CDC as one example of what he termed the administration’s failures.

Officials at CDC have privately complained of recent efforts by political appointees at main HHS to try to edit or press for changes in the agency’s weekly MMWR publications, a go-to resource for public health professionals.

MMWR articles are technical, but they reveal telling details. One published earlier this year noted that while Trump’s travel restrictions dramatically reduced travel from China in February, nothing was being done at that time to restrict travel from Italy and Europe, where the coronavirus was spreading widely and rapidly. Analysis of virus samples from hard-hit New York in March suggested it was introduced there from Europe and other parts of the U.S., the CDC article reported.

Caputo is an unswerving Trump loyalist. His recent book, The Ukraine Hoax, claims the presidents phony impeachment was rooted in a vast conspiracy.

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unwinona:This is exactly what conspiracy theorists and anti-vaxxers have done with their HIV/AIDS…

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unwinona:This is exactly what conspiracy theorists and anti-vaxxers have done with their HIV/AIDS...

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My RSS Feedunwinona:

This is exactly what conspiracy theorists and anti-vaxxers have done with their HIV/AIDS and Polio narrative (among others), only we’re seeing it escalated to weeks and months instead of years or decades.

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