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  • Oren Levin-Waldman

Violating the Constitution does not Protect “Our Democracy”

It is ironic that those who claim that “our democracy” is threatened, first by the election of Donald Trump and then the events of January 6th 2021, appear to support violating the constitutional separation of powers when it suits them. If not ironic, then it is sheer hypocrisy. Let’s state this up front, in a time of crisis, like the current pandemic, the government should provide renters with the means to pay their rent. If a moratorium on evictions is to be passed by the legislative branch, then landlords need to be compensated.


To simply extend the moratorium through executive order not only violates the separation of powers, but it violates the contract clause of the Constitution, and Fifth Amendment’s taking clause. First, let’s talk about the separation of powers. Article one of the constitution vests authority to spend money with Congress. If this moratorium involves the expenditure of money, either to renters or landlords, then the president on his own has no authority to spend it. Rather Congress has to appropriate money, which means that Congress has to act.


Article I, section ten of the Constitution, otherwise known as the contract clause, says that no state may pass a law “impairing the obligation of contracts.” A law could be a statute or an administrative rule. From this, we could infer, on the assumption that leases between tenants and landlords is a contract, states would have no real authority to pass their own moratoria on evictions. Arguably since it does not mention the federal government, then Congress could act? And yet, since tenant leases are state and local matters, it most likely was never contemplated that the federal government would have reason to interfere with contracts.


It is really the Fifth Amendment that is challenged here. It says: “nor shall private property be taken for public use without just compensation. This is the final line of a larger clause which deals with the concept of due process. If through executive order the moratorium on evictions is being extended, that might be tantamount to a taking without just compensation. In effect, it is confiscation of private property. Progressives no doubt justify this with the claim that landlords are wealthy and can afford it. After all, isn’t enabling out of work tenants the right to remain in their apartments without paying rent a compelling public purpose?


The laws of eminent domain posit that property may be seized for a public purpose, so long as the owners receive just compensation. In the absence of funds to landlords to cover rents that are in the arrears, there has been no just compensation. Moreover, no procedures have been put in place to allow landlords to challenge this moratorium which is nothing more than an administrative rule from the CDC.


The reason why the takings clause is part of the larger amendment dealing with due process is that the procedures that need to be in place allowing property owners to challenge such actions is to protect individuals from the arbitrary exercise of power and authority. Otherwise, in the absence of due process, the state could simply throw somebody in jail without charges or trial. In other words, it would be a return to Henry VIII’s use of the laws of attainder. If he wanted somebody’s property because he coveted it, he simply seized it. If you had a problem with that, why not have a secret trial prior to your arrest? The reason for this provision is to make it sufficiently costly to exercise the laws of eminent domain that the sovereign will have to be absolutely certain it is for a public purpose.


Granted, renters may need relief, but so too do landlords. Not all are wealthy billionaires. Rather many may be individuals and/or families who made an investment whereby the rent was needed to cover mortgage and maintenance. The calculation, in addition to appreciation of value, might have been that in retirement after mortgages were paid off, rental income would subsidize retirement savings and Social Security. Under the current moratorium, owners of property cannot even sell their property because their tenants effectively have the right to stay.


A free market economy relies on private property to function, and property cannot be protected if contracts can be interfered with. Why is property so central to a free market economy? Because one cannot sell in the marketplace what one does not own. Without property, the market falls apart.


Let’s start from the premise that the Constitution is about protecting individual rights. Because the separation of powers requires consensus to get anything done, the system is so robust that it protects rights by default because it can only act in incremental steps. Then again, what is a right? A right is a zone of protection society places around an interest. Basic human agency allows for us to pursue our interests as an expression of that agency. In a rights based society, government is obligated to respect that agency. A right that is elevated to a property right is effectively receiving an extra layer of protection. Again, the purpose of the Fifth Amendment is to protect against the exercise of arbitrary power and authority.


The extension of the moratorium on evictions may be arbitrary because it bypassed the legislative process. Because laws of eminent domain typically trigger procedures to challenge the decision, due process has effectively been given. The same cannot be said about this moratorium, especially given that it lacks transparency. Progressive members of Congress like executive actions for the same reason they want the Supreme Court to protect a woman’s right to choose. They want to be absolved of any responsibility for actually doing their jobs of legislating properly. Of course, there is nothing new here; it has been going on for years. But if they want to be absolved of responsibility, then how can they complain about threats to “our democracy?” Democracy requires adherence to procedure. The threat to our democracy is an overreaching executive branch that hides under the cover of a pandemic.


There is still a problem here. First, the Supreme Court has already said the president has no authority to extend the moratorium. Second, and more importantly, even if the pandemic rises to the level of national emergency, only Congress has the power to declare a national emergency; not the president.


In some ways, this issue is similar to DACA which Trump ended and attempted to send back to Congress where it rightfully belongs. Emergency legislation to prevent people from being thrown into the streets also belongs with Congress. The truth is that both issues are hot potatoes for Congress to seriously address. But please don’t insult our intelligence by telling us how concerned you are about the integrity of “our democracy.”

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