Are Covid-19 Eviction Restrictions Constitutional?

• Jurisdiction: United States,Federal
• Author: By James Burling
• Citation: Vol. 34 No. 1
• Publication year: 2021

Are COVID-19 Eviction Restrictions Constitutional?

By James Burling

James Burling is the Vice President for Legal Affairs, Pacific Legal Foundation, Sacramento. The Foundation specializes in defending individual and economic rights pro bono.

What does the printing of money have to do with COVID-19? No, this question isn't about the trillions of dollars in debt amassed to stave off a financial apocalypse that the shut-down-everything reaction to the pandemic would otherwise cause. It's about whether there are limits on the ability of the states to ease the plight of renters who may be facing eviction due to COVID-related income losses.

In the post-revolutionary pre-Constitutional era, the nation was facing a severe economic crisis. Farmers had amassed debts they could not pay off. Since farmers often made up a substantial majority of the voting public, state legislatures were willing to oblige by passing debt-relief schemes. One example stood out.

Rhode Island began printing its own currency, and lots of it. The money was made available to the state's farmers so they could pay off their debts. As more of it was printed, the less it was worth. Creditors began to refuse to accept the increasingly worthless currency. In response, Rhode Island passed a law obliging creditors to accept it when it was tendered. Some creditors left the state to avoid having to accept the debt. Others sued.

The Rhode Island Supreme Court found the scheme to be unconstitutional. Creditors did not have to accept the paper money. Or they wouldn't have but for the fact that the Legislature fired all the Supreme Court justices and rendered its decision void.

Other states had similar schemes. South Carolina, for example, allowed debtors to pay their debts in installments or even with worthless pine scrub lands. These and other abuses greatly disturbed James Madison and others, who saw a real threat when legislatures gave in to majoritarian impulses. As Madison wrote to Thomas Jefferson in 1786, such policies "disgrace Republican Govts. in the eyes of mankind."

It was against this backdrop that the framers of the Constitution met in Philadelphia in 1787 and adopted a constitution that was founded on the principle that a national government where powers were separated was the best remedy to factionalism and majoritarian tyranny. But leaving nothing to chance when it came to the states, the Constitution also included article I, section 10, which banned states from coining or printing money, or making anything other than gold or silver goods for paying off debts, or passing any "Law impairing the Obligation of Contracts."

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James Madison made it plain in Federalist No. 10 that the Constitution was meant to halt such evils as "rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project."

Now that the nation is facing new challenges with COVID-19, it is appropriate to ask whether the myriad pandemic orders and legislative enactments avoid the dangers that concerned the drafters of our Constitution.

COVID-19 Orders

The response to the COVID-19 crisis has been varied.

California, other states, and the United States have issued various COVID-19 orders, sometimes legislatively and sometimes through the executive branch, and in California through the judicial branch. Of relevance here are those affecting the ability of landlords to remove tenants for nonpayment and other contract breaches and to collect whatever rents may be owed.

It should be noted at the outset that landlords are not in the eviction business; they are in the business of providing housing to those who can pay for it. Most landlords in a situation like today's crisis will try to work something out with tenants who are in trouble through no fault of their own, as opposed to tenants who are troublesome. Landlords are neither a charity nor the source of unlimited resources by which they can maintain housing in good repair while paying taxes, interest, and utilities for free. Any leasehold that results in an eviction represents a failure both for the lessor and lessee. No one wants to evict a tenant and no tenant wants to be evicted. But sometimes eviction is the only remedy available when a tenant will not or cannot pay rent, especially while there may be others in line who are willing and able to pay. To the extent the inability to pay rent has been caused by the government's shutdown orders, it seems especially perverse that the landlords (rather than the government) should bear the brunt of the financial hardship.

One of the first responses in California to the crisis came from the Judicial Council which relied on the Governor's emergency powers to issue Judicial Council Emergency Rule 1, which simply ordered a halt to all new and existing eviction proceedings. Presumably, the thought was that people being evicted had a greater chance of ending up in situations where "shelter-in-place" would be impractical, thus increasing the spread of the disease. In September 2020, this scheme was replaced by Assembly Bill Number 3088, preventing evictions for tenants who file a notice with a landlord stating COVID-19 "financial distress." Landlords may not evict, so long as minimum payments are made through January 2021, and landlords may not seek back rent until March 2021.

Other states and cities have adopted similar measures. Seattle is particularly noteworthy because its eviction moratoria will last for six months after the emergency is over and prevents landlords from seeking repayment for overdue rent until a year after the emergency is over. Moreover, it forbids landlords from...