Thanks to Brett Kavanaugh, We Have the Very Slippery Slope of the New CDC Eviction Order

AP Photo/Evan Vucci

As we previously reported, Joe Biden announced that the CDC would be coming down with a new temporary eviction moratorium order.

What was so stunning about Biden’s remarks is that he indicated he knew it was likely to not pass constitutional muster, his own advisors had said the day before that they didn’t have the legal authority, that they had “quadruple-checked it.” Yet he decided to do it anyway, caving under pressure from the progressives. But, in the process, he also said the quiet part out loud — that they were going to do it anyway even if it was unconstitutional because it would take time for the lawsuits that would be filed to get the order stayed.


The CDC has now issued a new eviction moratorium order that applies to counties with “substantial and high levels of community transmission” of the Wuhan coronavirus, the same standards as the mask requirements. That means 50 or more cases out of 100,000 people and that applies to most counties in the country.

The CDC order argued that they needed to order the moratorium because evicting people would cause more people to move and come in contact with others thus leading to more spread of the virus. They also argued that the Delta variant represented an unexpected change in the trajectory of the pandemic.

“In the context of a pandemic, eviction moratoria — like quarantine, isolation, and social distancing — can be an effective public health measure utilized to prevent the spread of communicable disease. Eviction moratoria facilitate self-isolation and self-quarantine by people who become ill or who are at risk of transmitting COVID-19 by keeping people out of congregate settings and in their own homes,”

The CDC said it would be in force until October 3.

By this reasoning, the CDC, on behalf of the government, could use this justification to order virtually anything, with the virus as a twisted justification. That’s a horribly slippery slope to go down, even beyond Barack Obama’s pen and phone. Now the government is justifying the theft of your property using the thin reed of a “medical” justification to serve a political agenda (as Bonchie noted in an excellent piece detailing the tyrannical penalties for “violating” this “law”). It’s particularly troubling that Biden admitted that’s what this is. That anything the CDC is saying is simply to buy them that time, that they don’t care about whether it’s legal or whether or not they are acting in accordance with the law. So much for respecting the rule of law.


As I wrote earlier, Biden (and the CDC) are basically spitting in the eye of the Supreme Court because of the concurrence by Justice Brett Kavanaugh that indicated he would not go along in a further extension.

In the Supreme Court decision on June 29, Alabama landlords had challenged the moratorium. The liberal majority upheld the moratorium with Justice Brett Kavanaugh concurring, 5-4.

Although Kavanaugh concurred, he made it clear that he would not go along with it in the future and that he was only going along with it because it was ending in a month anyway. He argued it would give more time for the states to distribute the rental relief that Congress had voted for in the COVID bills.

“Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application to vacate the District Court’s stay of its order,” Kavanaugh wrote in brief concurrence. “In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”


Yet Kavanaugh also said he agreed with the district court judge and the applicant landlords that the CDC had gone beyond its statutory powers in imposing such a moratorium, to begin with.

There was no legal basis for the moratorium, which amounts to an unconstitutional government taking of someone else’s property without compensation. Kavanaugh agreed that the CDC had gone beyond its powers. But because Kavanaugh decided to give them another month to give them time to distribute the funds, he gave Joe Biden an opening to pull a move like this.

So what will happen next? The new ban will likely be found illegal after the first lawsuit hits and it will be ultimately be upheld. But now it’s a waiting game till that happens. And it never should have taken this long when it was so clearly unconstitutional in the first place.


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