September 18, 2020:- The New Civil Liberties Alliance lawsuit against the CDC eviction moratorium order (Brown v Azar) argues, among other things, that the agency’s order flies in the face of the non-delegation doctrine. This is the doctrine that says that the legislature cannot delegate its authority to the executive because doing do would violate article 1, section 1 of the Constitution of the United States, which vests all legislative power in Congress. It is supposed to help keep each branch of government in its own lane.
I find it hard to see how this particular argument can fail.
There is no doubt that the authority to establish a nationwide eviction moratorium lies (if anywhere) with Congress. To find evidence to support this, we do not have to look very far. In fact we only have to look back as far as April 2020, when Congress passed the CARES Act, section 4024 of which established a nationwide eviction moratorium.
If any branch of the federal government has the authority to bar property owners from going to court to seek the return of their own property, which is by no means certain, it is Congress. By imposing an eviction moratorium of its own, the CDC, an executive branch agency, is usurping the power that the Constitution vests exclusively in Congress.
September 9, 2020:- The New Civil Liberties Alliance filed a complaint that challenges the constitutionality of the CDC’s order that purports to ban evictions nationwide. For the press release, click here.
The organization is also seeking a temporary restraining order to prevent Health & Human Services Secretary Alex Azar implementing the order. My opinion, for what it’s worth, is that the CDC order exceeds the agency’s authority by a country mile. Stay tuned for updates.
September 8, 2020:- Quite properly, Attorney General Maura Healey is cracking down on wage theft, according to this article on MassLive. Wage theft is where a worker provides a service but does not get paid.
It’s a shame that housing providers who provide housing without getting paid can’t look to the Attorney General for help.
September 2, 2020:- Imagine they passed a law saying that you’ve got to go to work every day of the year, and if the company doesn’t pay your wages, that’s just too bad. You can’t sue them. You can’t go on strike. You can’t even quit.
I have a client who is in a position something like that.
She works as a housing provider, in addition to her day job as a nurse. She owns her own home and one other house that she bought in order to rent it out. Her goal was to use the rental income to pay the bank, and then (when she’d paid off the mortgage) start making a profit.
“It was supposed to be my 401(k),” she told me.
Not a 401(k)
That’s not how it turned out. In November 2019, the tenant (then, as now, unemployed) stopped paying rent, so my client started summary process (eviction) proceedings in Housing Court. But then the Legislature and the Governor passed Chapter 65, the partial eviction moratorium, which prohibits the courts from moving forward with non-payment cases even if the reason for non-payment has nothing to do with COVID 19 or the state government’s job-destroying, livelihood-wrecking response to it.
So the summary process case is suspended until the moratorium expires, which could be in October or might be in January if the Governor chooses to extend it. Or it could be even later; who knows.
When the case emerges from limbo, it will be one among thousands waiting for a judge to hear it. In the meantime, is there anything my client can do to try to get paid? At this point, the rent arrears are somewhat north of $8,000, by the way.
Two attorneys brought a constitutional challenge to the partial eviction moratorium, namely Jordana Rubicek Greenman and Richard Vetstein. For details of the lawsuit, check out Attorney Vetstein’s blog.
I wrote an amicus brief for MassLandlords, and watched the oral argument before Superior Court Judge Paul Wilson online. In the course of the argument, Attorney Vetstein made the point that the moratorium is barring the courts to one class of litigants, i.e. landlords. Not so, responded counsel for one of the tenants’ organizations who said that the courts aren’t barred because landlords can still sue tenants for breach of contract.
In his order denying the request for a preliminary injunction, Judge Wilson said the same thing: “[T]he economic effect on landlords is mitigated not only by their ability to sue non-paying tenants for breach of contract, but by the temporary nature of the moratorium.”
Could that really be a viable route, I wondered? Could landlords, who can’t use summary process for the foreseeable future, sue for breach of contract? The client I’m writing about here agreed to try.
Breach of contract case
On her behalf, I filed a simple breach of contract case in Housing Court. The tenant’s (taxpayer-funded) lawyer filed a motion to dismiss under Rule 12(b)(9) of the Massachusetts Rules of Civil Procedure on the basis that my client can’t have two cases about the same issue going at once.
Fair enough, you might say, why not just dismiss the summary process claim? Dismissing a case where the other side has filed counterclaims (which happened here) requires a motion that a judge has to rule on, and the partial eviction moratorium prohibits the courts from scheduling a court event.
More importantly, if my client did dismiss her summary process case, in order to regain possession of her house when the moratorium expires she would have to start all over again. She would be at the back of a line. A very long line.
Regarding those counterclaims that the tenant filed: Are there two sides to this story? Obviously.
But what if (after the moratorium expires) a judge, after hearing all the evidence, decided that even if some of the counterclaims were valid, the tenant owed my client, say, 75% — or even 50% — of the rent that had built up since November 2019? Does anyone really believe that the unemployed tenant will be able to pay several thousand dollars?
Anyway, we had a hearing, and the judge took it under advisement. When the court issues the decision, I will post an update.
No names, no pack drill
This story is far from being the most extraordinary that I have heard in the last few months. This one seems worth telling today, now that the federal government has established a nationwide eviction moratorium and there is some wider public discussion of the administration’s proffered justification and the likely impact.
My client gave me permission to tell her story online, but I decided not to use her name or other identifying information because you know how things are these days.
Like the tenant, she is a real person. She deserves some consideration from policymakers, and from the people who are supposed to hold them to account, i.e. the electorate.
She has to pay to maintain the property and keep it up to code. The tenant won’t pay rent, and has not applied for the subsidies that are available to cover the rent. But without the tenant applying, my client can’t get access to those subsidies.
So my client doesn’t want to be a landlord any more, obviously. But she doesn’t have a choice. She can’t get paid, and she can’t even quit.
September 2,2020:- Yesterday the Centers for Disease Control & Prevention (CDC) issued an order prohibiting evictions. For the fact sheet from the White House, click here. Before going any further, let me quote a pertinent passage:
“This Order does not apply in any State… with a moratorium on residential evictions that provides the same or greater level of public health protection than the requirements listed in this Order.”
If “public health protection” means eviction moratorium, then (assuming Governor Baker extends the moratorium through the end of 2020) the federal order would not apply in Massachusetts. The partial eviction moratorium here is much broader than the CDC’s.
Readers who care about old-fashioned concepts like law might be wondering, “what is the statutory authority for this order?” The agency cites section 361 of the Public Health Services Act.
As for whether the order is lawful and constitutionally sound, perhaps someone will sue and ask a judge to decide.
In terms of common sense, do the circumstances justify the order? I offer two screenshots from the CDC, and ask you to decide for yourself. The first screenshot is from the order. The second is from the agency’s recent provisional weekly COVID 19 death count. I urge you look at the full document.
If you have an opinion to share, please use the form that appears below screenshot 2.
August 26, 2020:- Today Suffolk Superior Court Judge Paul D. Wilson declined to issue a preliminary injunction against the Massachusetts eviction moratorium. Ruling that the moratorium does not amount to an uncompensated taking because “it does not deprive Plaintiffs of all economically viable use of their land” the judge also pointed out something that housing providers may find helpful:
[T]he economic effect on landlords is mitigated not only by their ability to sue non-paying tenants for breach of contract, but by the temporary nature of the moratorium.
For the purposes of seeking a remedy in the here and now, it is the first part of the sentence that merits attention. Picking up on a point that representatives of the tenants’ bar raised in oral argument, Judge Wilson statement suggests that even though they cannot start summary-process actions, landlords can still sue non-paying tenants for breach of contract.
July 30, 2020:- Perhaps I am a slow learner. But I think I just realized something important about the eviction moratorium.
Those following the Matorin v. EOHED case challenging Chapter 65 (the eviction moratorium) will know that earlier today the Superior Court held a hearing on the plaintiffs’ motion for a preliminary injunction.
What struck me while I was watching the oral argument was the size of the gap between the law’s supposed purpose and its actual effect. Then I realized that there is a gap between the two sides over the nature of the very thing they are arguing about, i.e. evictions. I will explain what I mean in a moment, but first a very brief explanation of a key term, namely “execution.”
In Massachusetts, only a judge can evict a tenant and award the housing provider possession of the rented premises. If, after trial, the judge decides to award the housing provider possession, the housing provider has to wait 10 days and then ask for a document called the writ of execution. This is the document that authorizes the sheriff or constable to physically remove the renters and their belongings. When the sheriff does so, it is called levying.
When non-lawyers think about evictions, what they have in mind is the event called levying the execution. It is quite rare, fortunately.
Before the constables or sheriffs can even get their hands on an execution to levy, the renters can ask the judge for a stay, i.e. a pause or delay. The law allows judges to stay execution for up to six months (12 months, if the renters have disabilities or are age 60+).
Rule 13 of the Uniform Rules of Summary Process lays out the steps.
Now back to the argument over Chapter 65.
How to stop executions
The proponents of Chapter 65 argue that the Legislature enacted the eviction moratorium in order to stop people being made homeless during the COVID 19 pandemic. If that had indeed been the real purpose, the Legislature could have achieved it by banning the courts from issuing executions and prohibiting the sheriffs from levying on any executions already issued. Here is the bill the Legislature could have enacted:
In any summary process case, the court shall not issue execution, and no person shall levy execution, until 45 days after the end of the state of emergency.
But the Legislature chose not to do that. Instead of banning the thing that non-lawyers think of as evictions (levied executions), it banned housing providers from even getting into court. And that, in turn, bars access to the trained Housing Court mediators who resolve disputes and help the parties work out payment plans.
If the Legislature and Governor had defined the problem they were trying to solve, they would not have created the unholy mess that will confront so many housing providers and renters when the moratorium finally ends. Defining problems before attempting to solve them is a big part of the job. And, unlike some of the housing providers I represent, the legislators are actually getting paid. Legislative salary moratorium, anyone?
As for the hearing in the Matorin case, the judge took the matter under advisement, which means that he will issue his decision at a later date. To stay up to date, and to read more about the case from Attorney Richard Vetstein, who is one of the two lawyers representing the Matorin plaintiffs, click here.
July 29, 2020:- Today the Appeals Court reaffirmed that the employment relationship between a religious organization and its ministers is beyond the reach of the anti-discrimination laws. The court held that the “ministerial exemption” covered the job in question, namely director of music ministries, and that the trial judge was right to dismiss the plaintiff’s age- and gender-discrimination case against her former employer.
As the ruling points out, the purpose of the exemption is to prevent courts depriving a religious organization of control over “the selection of those who will personify its beliefs.”
You can read the decision in Menard v. Archdiocese of Boston, which proponents of freedom of conscience and religion will welcome, by clicking here.
July 27, 2020:- What if the law forced you to go to work every day and then, if the boss refused to pay your wages, prohibited you from suing? Imagine having to provide the service, and not being able to make the other side stick to their end of the deal.
All work and no pay isn’t fair. But that’s the situation confronting many housing providers in Massachusetts right now. The law requires them to house their tenants even if the tenants can’t — or won’t — pay rent.
As if that weren’t bad enough, a bill that would flat out cancel the rent had garnered much support in the Massachusetts State House. Even as I write, an effort is underway to tack the proposal (together with the tried-and-failed policy of rent-control) onto another bill by way of amendments.
But it has not become law yet.
There is still time to tell your state representatives and senators what you think. The deadline is 12 noon tomorrow, Tuesday, July 28, 2020.
To submit your testimony on H4878/S2831 click here.
July 23, 2020:- The federal Department of Housing and Urban Development (HUD) has published a new rule about affirmatively furthering fair housing. It defines what the term “affirmatively further fair housing” actually means and makes it easier for communities to show that they are, indeed, doing just that (i.e. affirmatively furthering fair housing). This new rule replaces an old rule.
In 2015 President Obama’s HUD adopted a regulation that required towns and cities to explain in detail how their zoning, land use laws, and services such as public transportation were affirmatively furthering fair housing. This article from the Atlantic magazine describes the rationale for the Obama administration’s decision.
In 2018, citing the time-and-cost burdens that the rule-mandated assessment tool put on local governments, HUD Secretary Ben Carson suspended it. Several organizations, including the ACLU and the National Fair Housing Alliance, went to court in an unsuccessful effort keep the 2015 assessment tool in place. According to this ACLU statement, suspending it “puts housing integration in serious jeopardy.”
The State of New York joined the lawsuit. For Governor Cuomo’s announcement about the case click here. For a brief account of New York City’s track record as landlord from the National Apartment Housing Association click here. For another revealing story about affordable housing in New York, click here.
Several other States (including Massachusetts) and some cities (including Oakland, California; Portland, Oregon; and Seattle, Washington) signed on to an amicus brief in support of the effort to stop Secretary Carson suspending the 2015 rule. The new rule that Secretary Carson announced would seem to moot the case.
The new HUD rule about AFFH does not affect the need for local governments to avoid policies that have a disparate impact on protected classes, a form of discrimination that the Supreme Court of the United States recognized in Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015) and that the Massachusetts Supreme Judicial Court recognized in Burbank Apartments Tenants Ass’n v. Kargman, 474 Mass. 107, 122 (2016). To browse the SCOTUSblog material on Inclusive Communities click here. For Secretary Carson’s National Review article on the decision and its implications for HUD’s 2013 disparate-impact rule, click here.
My own post from 2013 discusses the disparate-impact rule that HUD had adopted prior to the SCOTUS decision in Inclusive Communities and the rule’s potential to address racially segregated housing and schooling patterns in an around Springfield, Massachusetts. In the 7 years since I wrote that post, I have not heard of any real progress on that front. If you know of some positive steps or have practical suggestions, please share them.
What should State and local government do (or not do) here in Massachusetts in order to reduce racial segregation in housing? If you have success stories or a policy proposal, I would like to hear from you.
July 21, 2020:- Today Massachusetts Governor Charlie Baker informed the Legislature of his decision to extend the eviction moratorium to October 17, 2020. His letter includes the folowing:
I am aware that the extension I am declaring today will impact many small landlords who rely on rental income to pay their own expenses. I strongly encourage tenants to continue to pay rent, and homeowners to make their mortgage payments, to the extent they are able while the moratoria remain in place. The Baker-Polito Administration already has made available $20 million in emergency rental and mortgage assistance to help lower-income tenants and homeowners make their housing payments. Between now and October 17, my administration will assess whether additional federal and state resources should be made available for this purpose. We also will be working closely with our colleagues in the judicial branch to ensure that when evictions proceedings resume there are programs in place to help tenants pay their rent and avoid eviction.
What began as an emergency stop-gap in the Spring will continue at least until the Fall.
July 9, 2020:- Housing providers have been asking whether the Massachusetts eviction moratorium is an uncompensated taking. The short answer: For some housing providers, yes, the moratorium operates as a taking. Here’s what I mean.
Right to exclude
Some years ago, the Supreme Court of the United States held that when the government takes away a property owner’s right to exclude other people from their property, the government has, in a sense, physically invaded the property. Nollan v. California Coastal Commission, 483 U.S. 825 (1987).
When tenants do not pay rent and the Commonwealth is prohibiting the housing provider from asking a judge to evict them, the Commonwealth is preventing the housing provider from excluding others (i.e. the tenants) from the property.
To that extent, where owners are barred from obtaining vacant possession (so that they can rent to somebody else or sell the property), the moratorium resembles a taking.
Hence the choice of image, by the way. What the Commonwealth is doing through the eviction moratorium is this: It is stopping owners from even trying to get possession of their own property. It is as if the Commonwealth had put a padlock on the door to the rental unit and given the one and only key to the tenant.
Compelled to admit
Nollan was decided when I was an undergraduate at Oxford University, and that (according to the calendar) was a while ago. More recently, the Supreme Court considered a case in which a property owner (Rose Mary Knick) had a family cemetery on her land, which the town government required her to make open to the public during the hours of daylight. Because the town was forcing Ms. Knick had to admit strangers to her property, even if she did not want them there. Knick v. Township of Scott, 139 S.Ct. 2162 (2019).
The specific issue that the Supreme Court decided was whether Ms. Knick should have tried state court first before federal court (no was the answer) but the case also illustrates the kind of government action that can amount to a taking, i.e. where the government compels owners to let other people use their property.
Today in Massachusetts, the Commonwealth is requiring housing providers to allow other people to use their property without paying for it. It’s the nonpayment part that makes life difficult for an increasing number of housing providers. As for that threshold issue of whether the situation can amount to a regulatory taking that warrants compensation from the Commonwealth, I believe that the answer is yes.
Do you own a rental unit where the tenant has stopped paying rent, and do you want to try to obtain compensation from the Commonwealth?
June 30, 2020:- Housing providers in Massachusetts may want to prepare for a referendum campaign. A new legislative proposal, HD 5166, would cancel the rent, make Housing Court cases secret, and extend the eviction moratorium for 12 months after the end of he state of emergency.
What do I mean by “cancel the rent”? After the end of the eviction moratorium–when rental-property owners would finally be allowed access to the courts again for nonpayment cases–the onus would be on the housing provider seeking unpaid rent to prove that the reason for nonpayment was not connected in some way to the emergency. That is an almost insuperable burden. Bear in mind, more than a year’s worth of rent could have accrued by that stage.
That aside, the bill is largely a grab-bag of previously filed proposals (e.g. eviction sealing and “just cause eviction”) repackaged as a response to the pandemic. If enacted it would so destabilize the market as to render the rental-housing business non-viable for all but the biggest (and most politically wired) landlords. So the bill title, “An Act to guarantee housing stability during the COVID 19 emergency and recovery,” is beyond parody.
Because of its emergency preamble, the bill, filed by State Representatives Mike Connolly and Kevin Honan (House Chair of the Joint Committee on Housing) with more than 20 co-sponsors, would go into effect immediately and the first 10 signatures necessary to start the referendum process would be due within 30 days.
Unfortunately, this proposal seems deliberately designed to destroy most private rental housing in Massachusetts thereby reducing the options for tenants to a choice between (a) big corporate landlords and (2) government housing. On the other hand (and trying hard to be optimistic and giving the politicians the benefit of the doubt) perhaps it’s just a milker bill (also known as a fetcher or juice bill).
Whatever the proponents’ aims, if this bill becomes law the only realistic way to rescue private rental housing (and preserve meaningful choice) is the referendum. Click here for referendum basics. In the meantime, please call your State Representative and Senator and ask them to take a stand against this bill.
June 30, 2020:- The eviction moratorium will expire in mid-August, unless Governor Baker prolongs it. Unfortunately according to this story in MassLive and this Tweet (below), Representative Kevin Honan is urging the Governor to extend the moratorium. I would not worry about a state representative weighing in but for the fact that this one is House chair of the Joint Committee on Housing and, therefore, somebody to whom the Governor might be inclined to listen.
For my argument as to why the Governor should let the moratorium expire (principally its negative impact on affordable housing) click here.
June 19, 2020:- This Juneteenth please take some time to remember James H. Wolff, Esq., a naval veteran of the Civil War and co-founder of the first Black law firm in Massachusetts.
Wolff was just 14 when he enlisted in the US Navy at the outbreak of the Civil War. Born to free parents in New Hampshire, he must have known that by volunteering to fight the Slave Power he was at risk of losing both his liberty and his life. Live free or die were the conditions of his daily life, not simply a motto.
He was aboard Minnesota when she bombarded the Confederates into surrender at Fort Hatteras, and when she became a stationary target for enemy fire after running aground early in the Battle of Hampton Roads. Three of her crew died in that engagement.
Wolff survived the battle and the rest of the war, and went on to practice law in Massachusetts. Twenty years after the war’s end and the passage of the Massachusetts anti-discrimination act, Wolff represented the plaintiff in a case that tested the statute’s limits and led to its expansion. His client in that 1885 case, Edward E. Brown, also happened to be his law partner. Together with attorney Edwin Garrison Walker, Wolff and Brown established the state’s first Black law firm. It was a firm with a mission.
After the decision of the Supreme Court of the United States in the Civil Rights Cases, 109 U.S. 3 (1883) that Congress lacked the constitutional authority to prohibit private discrimination (effectively neutralizing the federal Civil Rights Act) Wolff and his partners helped lead the campaign for stronger state-level legislation in Massachusetts. One element of that campaign took the form of a lawsuit against a Boston skating rink that refused to sell tickets to people of color. Brown was a plaintiff, and Wolff his attorney. They won.
Coordinating the case and legislative effort to enforce and amend the 1865 law was the Wendell Phillips Club, which functioned as a sort of precursor to the NAACP, bringing together business owners, ministers, and lawyers in the cause of civil rights. Walker, Wolff, and Brown were at the forefront, litigating and lobbying for liberty pro bono publico while somehow bringing in enough billable work to pay the bills and raise their families (both of Wolff’s sons followed him into the law, by the way).
For a fuller account of the case, see my article “The Genesis of the Black Law Firm in Massachusetts,” Massachusetts Legal History 5 (1999). Not quite everything ever published is available online, it seems, so if you would like a copy, email your request to firstname.lastname@example.org.
In the meantime, please devote a few moments of thought to James H. Wolff. An exemplar of physical and moral courage, he is worthy of remembrance.
June 17, 2020:- An eviction moratorium that applies to some properties (those with FHA-insured mortgages) just got extended, as this mortgagee letter from the Department of Housing and Urban Development (HUD) and this FHFA news release explain.
The decision does not mean that the broader federal eviction moratorium is being extended (only Congress can do that) or that the Massachusetts moratorium is being extended (only the Massachusetts Governor can do do that, or — if it decides to amend the eviction-moratorium statute — the Legislature). The moratorium in question is one of three that may apply to your property if you are a housing provider in Massachusetts.
Before the Chapter 65 eviction moratorium there was the CARES Act eviction moratorium and before the CARES Act eviction moratorium there was the HUD eviction moratorium. Under Chapter 65, the eviction moratorium and ban on issuing notices to quit will expire on August 18, unless the Governor extends the moratorium by 90 days.
There is some overlap between the federal and State moratoria, so that even if the Massachusetts moratorium expires on August 18, a housing provider may still not be able to go to court for unpaid rent, or even terminate the lease by way of a notice to quit, if the tenant lives in a property financed by an FHA-insured mortgage. It’s all a bit of a jigsaw puzzle.
Takeaway: Housing providers in Massachusetts should not assume that after August 18 they will be able to issue non-paying tenants with notices to quit.
June 15, 2020:- Before the Massachusetts Legislature imposed an eviction moratorium, Congress enacted a limited moratorium of its own. It lasts 120 days and is confined to properties participating in federal programs including, at the very outer edge, properties with federally-backed mortgage loans. CARES Act, section 4024 (page 574 of the PDF). The 120-day period started running on March 27 so expires on July 25. Democrats in Congress want to not only extend the duration of the moratorium but also expand it to cover all rental properties.
The bill that passed the House (where the Democrats have a majority) and is currently before the Senate (where the Republicans have a majority) is titled the HEROES Act.
The name is apt. Just reading the bill requires a degree of fortitude bordering on heroism. It consists of 1,815 pages that explain how the federal government should go about spending $3 trillion (trillion with a T), a sum that even nowadays seems quite a large amount of money. According to the Endowment for Human Development, a stack of one trillion dollar bills would reach almost 68,000 miles. So a stack of three trillion dollar bills would reach 204,000 miles. Driving that distance at 60 mph would take 3,400 hours, i.e. 142 days, and that’s with no rest stops (bad idea). No wonder it took Congress 1,815 pages.
Where would the proposed $3 trillion go? The potential recipients are legion, so I will name but a few that may prove of particular interest to Bay Staters.
For example, $50 million would go to the Legal Services Corporation (LSC) which every year helps fund entities in Massachusetts such as Community Legal Aid (CLA) and Northeast Legal Aid (NLA) to the tune of about $1.5 million and $1 million respectively. If you are a housing provider who has ever had to take tenants to Housing Court for, say, nonpayment of rent (back when housing providers were allowed to do that sort of thing), you may be familiar with CLA and NLA. They are the attorneys who represent the tenants. Similarly, the Volunteer Lawyers Project of the Boston Bar Association also receives LSC funding of approximately $2 million per year, which is exactly the kind of voluntarism I could volunteer for.
Under the HEROES Act another $4 million would go to the Fair Housing Organization Initiative. Earlier this year, HUD (which administers the program) awarded $300,000 to Community Legal Aid (yes, the same Community Legal Aid that got $1.5 million from the federal Legal Services Corporation). HUD also doled out $300,000 to Massachusetts Fair Housing Center, Inc. That’s the corporation that is suing Massachusetts in federal court over the Lead Paint Law, which it alleges discriminates against families with children. For a list of reasons why that lawsuit represents a less-than-judicious use of taxpayers’ money and everyone’s time, click here.
In addition to spreading the wealth around, the HEROES Act would prohibit evictions.
A year-long, nationwide eviction moratorium
In the PDF version of the HEROES Act, the provisions about the eviction moratorium start at page 961 in section 110203 of Division K, Title II (titled “Protecting Renters and Homeowners from Evictions and Foreclosures).
What would this part of the bill do if the Senate approves? For a period of 12 months after enactment, it would prohibit “legal action to recover possession of the covered dwelling from the tenant for nonpayment of rent or other fees or charges.” The term “covered dwelling” means dwellings covered by section 802 of the federal Fair Housing Act, i.e. all rental units. Yes, all rental units in the country, even in those States that have addressed the issue — and continue to do so — in their own way.
Whether judicially, legislatively, or by executive order, many of the States have enacted eviction moratoria of some kind and duration. In a country of approximately 330-million people across 50 States, there has been some variety. Utah imposed a ban whereas Oklahoma did not. New York extended its ban whereas Colorado did not. California? We’ll see. May Congress supplant these various State-level approaches, replacing them with a one-size-fits-all rule?
Congress does not have the authority to make laws governing absolutely each and every form of human activity that may occur in the United States. Its powers are limited, believe it or not (and for many in Congress it seems to be “not”).
As James Madison explained: “[T]he proposed government cannot be deemed a national one since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residual and inviolable sovereignty over all other objects.” Federalist No. 39. Sovereignty is shared, the Constitution circumscribes the powers of Congress, and the Constitution does not give a articular power to Congress it remains with the States. The lines of demarcation may be blurry but they are not invisible.
Among the enumerated powers of Congress is the power to regulate interstate commerce. This is what allows Congress to legislate in the area of housing so as to reduce invidious discrimination. Activities within a singe State that may have a a substantial and harmful effect on interstate commerce can come within the clause’s scope, e.g. racial discrimination in housing.
Flexible it may be, but the Commerce Clause has its bounds. For example, it does not extend beyond economic activity to economic inactivity, as the Supreme Court held in NFIB v. Sebelius. In an area where the States are already acting separately, and where there is no invidious racial discrimination or other activity that has a substantial and harmful effect on interstate commerce, the answer should be no.
That seems to be the opinion of Senate Republicans at this point, who consider the bill a liberal wish list. When the GOP-majority Senate takes up the HEROES Act in July (or perhaps August according to this article) it seems unlikely to vote to extend and expand the eviction moratorium. But, as we have all learned in the past few months if we didn’t know it already, sometimes changes come thick and fast.
The CARES Act’s eviction moratorium applies to housing with some kind of federal connection, albeit tenuous in some cases. Each State has supplemented that federal law with a response of its own, tailored to local needs. Those State-level laws may be unpalatable and arguably unconstitutional, e.g. Chapter 65 in Massachusetts. But they are examples of federalism in action, and typify the way our system is supposed to work. Expanding the federal moratorium is both unnecessary and unconstitutional.
If you believe that the Senate should reject the effort to impose a nationwide, year-long moratorium on evictions, please call your U.S. Senators and let them know.
June 11, 2020:- Here’s a grip-and-grin photo of Governor Charlie Baker and yours truly back in 2018 (I’m the one with the beard). If I met the Governor again today and could ask him one thing, it would be to let the eviction moratorium expire.
Why? Because, as I point out in my latest article for MassLandlords, the eviction moratorium is making affordable housing even scarcer. It encourages housing providers to keep vacant units off the market. For the full text of the article, click here.
June 1, 2020:- What is there to say today. Following the slow and public killing of George Floyd by an agent of the state, there is some valuable discussion about the doctrine of qualified immunity, e.g. this article in reason, and some renewed interest in a subject that was in the news before COVID 19, e.g. this 2019 post from the ACLU on the way collective bargaining agreements stymie reform. In a future post, I will weigh in.
But for now, I believe that it is worth thinking about two simple statements. First, this one, sometimes attributed to George Washington: “Government, like fire, is a dangerous servant and a fearful master.” Second, this quote from V for Vendetta.
I offer my sincere condolences to Mr. Floyd’s loved ones.
May 28, 2020:- Alleging that the eviction moratorium operates as a taking of their property without just compensation, a group of housing providers in New York have filed suit in federal court, according to the New York Law Journal.