Sen. Pat Toomey (R-Pa.) asked the Government Accountability Office (GAO), the congressional investigative arm, on Aug. 11 for a rush review of the Center for Disease Control and Prevention’s (CDC) extended renters’ eviction moratorium.
Toomey wants the GAO to determine whether the moratorium recently ruled unconstitutional by the U.S. Supreme Court but extended at the direction of President Joe Biden by the CDC on Aug. 3 is a regulatory rule subject to the Congressional Review Act (CRA).
If the moratorium is subject to CRA, then it could be repealed by a majority vote in the Senate. Toomey has previously used the tactic to force repeal of Obama-era financial regulations on auto and leverage business loans.
Toomey asked Comptroller General Gene Dodaro, who manages the GAO, to provide a decision on the moratorium no later than Aug. 16.
CDC Director Dr. Rochelle Walensky extended the moratorium that was originally issued by her agency in 2020, but expired on July 31. In doing so on Aug. 3, she claimed the protection of public health justified the extension as an emergency action.
“This moratorium is the right thing to do to keep people in their homes and out of congregate settings where COVID-19 spreads,” Walensky said in a statement.
“It is imperative that public health authorities act quickly to mitigate such an increase of evictions, which could increase the likelihood of new spikes in SARS-CoV-2 transmission. Such mass evictions and the attendant public health consequences would be very difficult to reverse.”
If the moratorium is upheld as a public health necessity, it could escape CRA review. But if the GAO says the moratorium fits the CRA’s definition of a rule, it could be knocked out by the Senate.
The original moratorium and Walensky’s extension were issued without the normal rulemaking process that includes public comment opportunities.
At the same time as Toomey made public his letter to GAO, he joined with Sen. Roger Marshall (R-Kan.) and Sen. Richard Burr (R-N.C.) in authoring a Senate Joint Resolution to enable the CRA review of the CDC moratorium extension.
“The Biden Administration’s executive action banning landlords from collecting rent that is rightfully owed to them goes beyond the CDC’s legal authority,” Marshall said in the statement with Toomey.
“This extended halt in evictions sets a dangerous precedent for government agencies operating outside of their statutory limitations in the future and must be stopped.
“Thoughtless power grabs such as these have rippling consequences and the continued prolonging of the eviction moratorium does more to harm American economic recovery than to help it,” Marshall said.
“The Supreme Court has made it clear—and President Biden himself has confirmed—that CDC does not have the legal authority to unilaterally extend the eviction moratorium,” Burr added in the statement.
Burr was referring to Biden’s admission on the same day Walensky issued the extension that “the bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster.”
Biden said Walensky went ahead with the extension because by the time opponents would be able to get a court ruling against it, the administration would have distributed an estimated $45 billion in assistance to renters who are behind in their payments.
The original eviction moratorium was allowed to stand by the Supreme Court in a June 29 decision because, at the time, its expiration was only a few days away. But Justice Brett Kavanaugh in a concurring opinion said the moratorium exceeded the CDC’s authority. Congress needed to expand the agency authority to continue the moratorium, he said.
Heritage Foundation judicial analyst Joel Griffith told the House Judiciary Committee during a June 14 hearing that the moratorium was unconstitutional on multiple grounds.
“Moratoria also invoke serious constitutional and legal concerns. They may violate the takings clause of the Fifth and the 14th Amendments, along with the Contract Clause,” Griffith testified.
“The Commerce Clause—upon which the CDC powers are based—does not provide a basis for Congress to prohibit citizens from seeking legal recourse in state courts for enforcement of rental contract provisions.”