Charlie Harper: Unconstitutional Eviction Moratoriums Will Hurt Those They’re Supposed To Help

Charlie Harper

Monday, September 20th, 2021

As someone who cut his teeth writing in the political blogosphere, I learned early on that many base their worldview on their favorite amendment.  Citations of the First, Second, Fifth, or Tenth Amendments are for some a complete rebuttal to any political argument. 

I don’t often pretend to be a constitutional scholar, as universities across the country mint quite a number of these annually and they can’t ever agree on the framers’ intentions.  I’d usually respond to commenters who wanted to turn every blog post into their favorite issue by invoking their amendment of choice by deadpanning “I’m really more of a Third Amendment guy…”

I’ll stipulate at the outset here that any humor found in that response has a very narrow audience.  I say all this to say that like so many things in politics that would have seemed like a joke just a few years ago now have even fewer people laughing.

The Third Amendment to the Constitution 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.”  Let’s stretch this out a bit (as many are quite willing to do with their constitutional arguments using penumbras and other constructs) and stipulate how many comparisons have been made during this ongoing pandemic to mobilizing the country on a war footing.

In the war against the coronavirus, the federal government – using the CDC of all agencies – has been demanding that individual property owners quarter tenants via eviction moratoriums.  While there have been funds set up to compensate some for lost rents, these payments are neither direct nor do they make the property owners whole.  

The Supreme Court in August issued a ruling making it clear that the CDC had no authority to issue an eviction moratorium, and specified that any new moratoriums must come from Congress.  It was like someone finally watched a few old clips from Schoolhouse Rock on how laws are made. 

This of course, does not mean that all tenants behind on their rent have been immediately thrown into the streets.  Evictions are conducted at the local level, and there is still a legal process that landlords must follow to remove occupants who have not honored their obligations under a lease.

This brings us to DeKalb County, and Judge Asha Jackson, who issued a 60-day moratorium against any eviction proceedings writing "Without this local extension to the CDC moratorium, thousands of DeKalb residents faced the stark reality of having their belongings set out on the street in the midst of surging COVID-19 infection rates.”

The Judge could have just as easily written “by extending this moratorium, I am forcing individual property owners to bear the financial burden of the ongoing pandemic without regard to property rights and without ensuring just compensation for the government’s taking.”  It appears the judge’s bias was clearly on the side of those who despite having not only housing assistance but enhanced unemployment assistance and other government programs, have been able to live rent free for a year and a half.  And counting.

It’s been interesting watching advocates who rightfully point to the lack of workforce housing champion ongoing and unlimited eviction moratoriums as if this is helpful to their cause in the long run, or even short run.  Comedian Andy Richter has provided one of the best anecdotes of the market self-correcting, noting his son was asked to pay 6 months up front from a landlord to secure a 1-bedroom college apartment.

When the government decides to “solve” a problem, there will always be unintended consequences.  The federal and local governments have combined to increase the risk property owners face when they turn their homes over to strangers based on a promise to make monthly payments.  

By trying to “help” those who for whatever reason can’t or won’t make their payments, the government has increased the cost of doing business to landlords.  Markets self-correct in passing along these costs.  

Expect rents to continue higher, especially for those who are already living at the margins.  By “helping” solve a short term problem, the government is diving head first into making a longstanding problem – that of supplying adequate workforce housing - harder.