At the beseeching of congressional Democrats and the fanatical urgings of Nancy Pelosi, who called the extension of the federal eviction moratorium a "moral imperative," the Centers for Disease Control and Prevention (CDC) has issued a new nationwide ban on evictions for counties with heightened levels of coronavirus community transmission. This latest CDC order comes in spite of President Biden’s candid admission that "the bulk of the constitutional scholarship says it’s not likely to pass constitutional muster." In The Ethics of Liberty, Murray Rothbard attests that the "right to contract is strictly derivable from the right of private property." If private property is a keystone for prosperous societies and a fundamental tenant of common law, what happens in the aftermath of the vitiation of millions of private contracts?
A brief recap. In March 2020 under the CARES Act, an eviction moratorium was applied to all dwelling units participating in federal assistance programs. Invoking the Public Health Service Act of 1944, the CDC broadened the moratorium to cover all rental properties countrywide in September 2020. The CDC’s unprecedented unilateral expansion was rationalized as a reasonable measure to combat the spread of COVID-19 by preventing crowded living conditions that would stem from mass evictions and by facilitating self-isolation. This decree, initially slated to end after three months, had been extended on five separate occasions. Rent protection programs have additionally been enacted at the state level. In some states these eviction moratoriums are scheduled to expire over the upcoming weeks. In others, they are set to continue indefinitely.
In consonance with the ethos of a free society, the United States Constitution is a document grounded in natural rights, conceived to protect private property. The Founding Fathers did not include a universal pandemic exception. The Fifth Amendment states that no one shall be "deprived of life, liberty, or property, without due process of law," but does permit private property to be expropriated with just compensation (e.g., eminent domain). The Fourteenth Amendment guarantees due process protection at the state level. According to the Contract Clause, no state "may pass a law impairing the obligation of contracts." During the eviction moratorium however, contractual obligations were voided, property was despotically taken with no compensation, and liberty was deprived without a hearing.
For many painstaking months, landlords have been stripped of their rights to freely use their property, while being forced to fulfill legal duties for squatters. Courts at the district level ruled the CDC’s edict unconstitutional, yet the moratorium persisted. In June 2021, the Supreme Court chimed in, allowing the eviction moratoriums to stand in the case of Alabama Association of Realtors v. Department of Health and Human Services. However, Justice Brett Kavanaugh clearly stated that the CDC exceeded its authority, that congressional authorization would be required for a moratorium extension, and that his deciding vote was cast only due to the fact that a few weeks remained before the moratorium was set to expire. Nevertheless, in open defiance of the Supreme Court ruling, the CDC issued their slightly scaled back, 60 day ban on evictions, at the beginning of August.
A dangerous precedent has been established. If eviction moratoriums are deemed a lawful intervention, why shouldn’t the seizing of private property be used to quell future "crises"? Will the current fallout include landlords abandoning the industry, or will rents be raised to offset uncertainty risks as speculated by Jeff Deist? How do members of a society continue to confidently form agreements when the trust associated with contract enforcement erodes?
When taking this all into account, proponents of strict constitutionalism are inevitably forced to reconcile their philosophy in the face of a swelling regulatory state, led by power mongering aspiring autocrats, who perceive the founding documents as ignorable relics. None of this should be overly surprising given that politicians and bureaucrats are perversely incentivized to perpetually expand the size of government. In spite of illusions of separated powers, regardless of whether the reigns are wielded by Democrats or Republicans, when the state is the ultimate arbiter, even in cases involving itself, justice becomes an empty abstraction distributed to gain political favor.
Applying one set of ethical standards to the citizenry and another to the state is hypocrisy and downright immoral. In a system that preserves property rights, a creditor may grant a debtor forgiveness solely for obligations between the two parties. As Lysander Spooner wrote in No Treason: The Constitution of No Authority:
"A man’s natural rights are his own, against the whole world; and any infringement of them is equally a crime; whether committed by one man, or by millions; whether committed by one man, calling himself a robber, or by millions calling themselves a government."