Last month, a six-justice majority in the Supreme Court ended the Centers for Disease Control and Prevention’s (CDC) eviction moratorium, saying the department had no authority to implement such a policy under existing law.
A new bill introduced by Missouri Rep. Cori Bush — and also sponsored by Massachusetts Sen. Elizabeth Warren — is designed to change that.
The Keeping Renters Safe Act would amend section 361 of the Public Health Service Act, which was the statute at issue during the SCOTUS case, to explicitly give the CDC the power to institute eviction moratoria for the duration of all “public health emergencies.”
A Brief Civics Lesson
The practical issues with eviction moratoria have been exposed again and again, and need not be repeated here. (Though it should be noted that, under this bill, the moratoria implemented would be more extreme than those that were in place over the past year, since tenants won’t even have to claim that they are unable to pay rent in order to be exempt from eviction.)
Instead, let’s explore how this bill perverts our very system of government — concentrating power in the hands of a few unelected bureaucrats rather than with the people we all elect.
A brief civics lesson is in order.
The idea of separation of powers may be the most important aspect of the Constitution. It splits the responsibilities and powers of the federal government into three different branches. The legislative branch is supposed to make laws, the executive branch is supposed to enforce laws, and the judicial branch is supposed to interpret laws in order to settle disputes.
Each branch is meant to act as a check on the others’ power. If any of the three branches were to try and attain powers beyond what they were prescribed, the other two could take corrective action; Congress can impeach the President, the President can veto legislation, and the Supreme Court can strike down unconstitutional laws. Moreover, because it is presumably in the self-interest of each branch to maximize its own power, it would make sense to push back on efforts by other branches to try and assume powers originally held by your branch. In practice, this was supposed to mean that none of the three branches would be able to concentrate nearly all power in itself.
But, over time, the system as it was intended to operate has eroded. There are two main reasons. The first is what Washington Post columnist George Will calls the “inflation of the modern presidency.” It is the idea that the president should not only be at the center of American politics but possibly even at the center of American life. It is why so many people are so obsessed with the president’s every move.
The second is the intense reluctance of politicians in Congress to simply do their job. The reasons for this are numerous, but the result of it is the delegation of decision-making to officials in other branches.
Consequently, decades upon decades of American politics can be characterized by the massive delegation of legislative power to the executive branch. This has resulted in an extremely large, powerful, and centralized executive branch — one that never should have been allowed to exist under our system of government.
The dynamic explained above is precisely what the Keeping Renters Safe Act perpetuates.
Under Sen. Warren and Rep. Bush’s bill, the power to make controversial and consequential housing policy is being delegated to an executive agency (namely, the CDC) that is both unelected and unaccountable. The ultimate result of this delegation is a situation where most new rules mandated by the federal government come from these unaccountable bureaucrats — not the members of Congress democratically elected to represent Americans.
In 2016, for example, the federal bureaucracy issued 3,853 rules; in comparison, 214 congressional bills were signed into law. That means for each bill that was passed by Congress and signed into law by the president, there were 18 rules made unilaterally by federal agencies. From 2006 to 2016, the average ratio was 27 rules for each law. What this means is that the executive branch is effectively doing more legislating than the legislative branch. And this new eviction moratorium bill will make the ratio of executive branch rules to proper laws even more severe.
This is not only constitutionally untenable, but also antithetical to the very idea of constitutional democracy and representative government — which is built on the assumption that the people actually get to choose who represents them. When nameless, faceless, unelected and unaccountable federal bureaucrats make most policy, it leaves the people without a voice to protect their own rights.
If a small landlord is getting crushed due to the eviction moratorium (like many have) because the government requires that they allow another person to use and occupy their private property, they have no recourse when the mandate comes from within the executive. They can only yell into the abyss while faceless government workers continue to violate their rights. On the other hand, if the power to implement eviction moratoria lies solely with the legislature, then there are tangible ways the average citizen can make their voice heard.
This is not a call for populism, by which majority passions are swiftly translated into policy. Rather, it is a call for the restoration of true representative government, where the people actually get to decide who makes the decisions.
But, as of now, we did not elect the people who today make most of our nation’s policy. They got zero votes, yet they make the rules we all must live by.
A Word of Caution From the Father of the Constitution
James Madison said “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
As long as people continued to believe in the importance and genius of the Constitution, America was secure from untrammeled tyranny. But without that belief, the Constitution is nothing more than what Supreme Court Justice Antonin Scalia called a “parchment guarantee.”
With each legislative dereliction of responsibility, we move one step closer to the complete concentration of power, which Milton Friedman rightly called “the great threat to freedom.” In order to prevent it, we must all not only rededicate ourselves to conserving the system of government outlined in the Constitution, but also hold accountable politicians who do not.
This article, Elizabeth Warren and Cori Bush Team Up to Give the Presidency New Superpowers, was originally published by the Foundation for Economic Education and appears here with permission. Please support their mission.