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Biden Admin Sued by Realtors & Constitutional Lawyers Over Eviction Moratorium

Published: August 06, 2021
  |   By Charley Mills

The Alabama Association of Realtors has filed a lawsuit against the Biden administration over the Centers for Disease Control and Prevention’s (CDC) eviction moratorium.

The moratorium was put in place despite a June Supreme Court ruling that the CDC “exceeded its existing statutory authority by issuing a nationwide eviction moratorium … clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”

According to the CDC, landlords violating the order “may be subject to a fine of no more than $100,000 or one year in jail, or both, if the violation does not result in a death, or a fine of no more than $250,000 or one year in jail, or both if the violation results in a death.”

The CDC found authority for passing the order through a creative reading of the Public Health Service Act of 1944, which gives the CDC the power to halt disease by providing for “such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures.”

The CDC used the “other measures” standard to bridge the gap between acts like providing for “sanitation” and effectively seizing homes owned by landlords to allow people to live there for free.

According to the U.S. Sixth Circuit Court of Appeals, “That reading would grant the CDC director near-dictatorial power for the duration of the pandemic, with authority to shut down entire industries as freely as she could ban evictions.”

In an ironic twist, the Alabama Association of Realtors’ lawsuit states that the moratorium “extension relies on the same source of authority … that this Court, the Sixth Circuit, and a majority of the Supreme Court found inadequate to justify the eviction moratorium. The CDC’s semantic recasting of the latest extension … is a distinction without a difference because it has no bearing on the CDC’s legal authority.”

The lawsuit added, “The Supreme Court ruled that only the Legislative Branch — not the Executive — had authority to extend the moratorium … Congress tried, but failed, to enact a legislative extension in reliance on those representations. Yet rather than accept that as the final word under our constitutional system … the CDC extended the moratorium anyway.”

An additional amicus curiae briefing, filed by the Third Amendment Lawyers Association, is raising further legal arguments about the constitutionality of the CDC’s Eviction Moratorium, claiming the move is a violation of the 3rd Amendment.

“The 3rd Amendment has awakened from its slumber!!!! The eviction moratorium may violate the 3rd Amendment. þALA (The 3rd Amendment Lawyers’ Association) to the rescue!!!!” posted a First Amendment lawyer.

The 3rd Amendment states: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

“The federal government today is not likely to ask people to house soldiers in their homes, even in time of war. Nevertheless, the amendment has some modern implications,” writes the National Constitution Center in Philadelphia. “It suggests the individual’s right of domestic privacy — that people are protected from governmental intrusion into their homes; and it is the only part of the Constitution that deals directly with the relationship between the rights of individuals and the military in both peace and war — rights that emphasize the importance of civilian control over the armed forces. Some legal scholars have even begun to argue that the amendment might be applied to the government’s response to terror attacks and natural disasters, and to issues involving eminent domain and the militarization of the police.”

J. Lee Hammond contributed to this report

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