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Will Property Rights be Permanently Diminished?

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Will Property Rights be Permanently Diminished?

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Will Property Rights be Permanently Diminished? 2

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 homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting.”

So writes Ilya Somin at The Volokh Conspiracy.

This is an amazing power grab by the Trump administration. It violates property rights and federalism. And its based on what looks like a narrow regulatory power that was not intended for its current use.

Somin goes on to point out the legal basis for the measure:

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.

The measure in itself is scary. The precedent is even scarier. Somin writes:

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.

Moreover, governors in most states have taken a meat ax to property rights of business owners in the last few months. So the answer to my question “Will property rights be permanently diminished?” is, I think, yes.

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