In an interview after the Democratic National Convention, Joe Biden said he would consider shutting down the economy for a second time to prevent further spread of the coronavirus. President Trump attacked him for even contemplating such a measure — and then promptly gave him the legal grounds to do so.
Despite good intentions, the president’s recent regulatory action suspending evictions nationwide arguably exceeds his authority, and the federal government’s. But a President Biden, to say nothing of other future Democratic presidents, could use this questionable decision as a precedent to issue even more questionable edicts.
It’s the latest example of why small-government conservatives can’t have nice things: Because activist presidents of both parties keep wanting to expand their power.
Public Health Service Act
The order, published in last Friday’s Federal Register, prohibits most evictions nationwide through the end of the year. So long as renters sign a declaration stating 1) they will earn less than $99,000 this year (or $198,000 for a couple), 2) cannot make rent due to loss of income, 3) have “used best efforts to obtain all available government assistance,” 4) will “us[e] best efforts to make timely partial payments that are as close to the full payment” as possible, and 5) face homelessness or will have to move in with others if evicted, landlords cannot evict them for non-payment of rent.
Landlords could still pursue evictions for other reasons, such as criminal behavior on-premises. The eviction moratorium applies to all properties, not just those with federally backed mortgages.
The administration issued the order pursuant to authority granted in Section 361 of the Public Health Service Act. That law gives the surgeon general and the secretary of Health and Human Services (HHS) the authority “to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.”
Conservative and libertarian-minded lawmakers immediately objected to the Trump administration issuing the eviction moratorium under this authority—and for good reason. The rest of Section 361 of the Public Health Service Act talks about “the apprehension, detention, examination, or conditional release of individuals” to prevent the spread of communicable diseases.
In short, this section of the law discusses quarantines. At best, using this statutory authority to prevent evictions nationwide represents a creative interpretation of federal statutes, and it remains unclear whether courts would find the administration’s interpretation a lawful one.
More Lockdowns Ahead?
But assume for a moment that federal courts do bless the administration’s actions. Assume that any challenges that HHS’s order exceeds its statutory authority fail. Assume too that courts disagree with some lawmakers’ assertions that the order violates the Fifth Amendment to the Constitution, by taking individuals’ property (i.e., prohibiting landlords from evicting renters) without providing just compensation.
If courts do uphold this order, Biden could use Section 361 of the Public Health Service Act to impose his own unilateral agenda, just as President Trump has done. If HHS can “make and enforce such regulations as…are necessary” to stem the COVID outbreak, and, thanks to the Trump administration precedent, the scope of those regulations can now exceed quarantines on infectious individuals, Trump just gave his potential successor a lot of power.
With that authority, Biden could wade into areas traditionally the province of states. He not only could impose a national mask mandate, but he could also impose a nationwide shutdown — of businesses, and potentially of uninfected persons. It would represent a massive expansion of federal authority and power.
Even though Trump said a Biden-imposed lockdown would cause a “crippling, long-lasting depression,” he just gave Biden the tools with which to impose such a lockdown on the American people come January 20 if Biden is elected.
Work with Congress
Therein lies the problem with Washington, and for proponents of limited government: Presidents always want to take unilateral action on their agenda items, but in so doing, expand the scope of the presidency in ways that will allow successors to undermine their agenda.
To give an obvious example, I noted four years ago that Barack Obama’s decision to spend funds on Obamacare without an explicit appropriation from Congress would give his successor grounds to create money out of thin air to fund a border wall. And so it proved.
If Trump wants to impose an eviction moratorium, he should go to Congress and make his case to have them pass it into law. Acting unilaterally only gives future Democratic presidents more authority to expand executive power—something they always want, but should not have.