EDITORIAL: Federal government tries to avoid tab for eviction ban

If the government illegally takes your property, it shouldn’t have to compensate you, because its actions were illegal. So argues the government.

During the COVID pandemic, the Centers for Disease Control and Prevention imposed a nationwide eviction moratorium, claiming that it would reduce the spread of the disease. This started during the Trump administration. Not surprisingly, property owners filed a mountain of lawsuits. They contend that the moratorium violated the Takings Clause of the Fifth Amendment. That requires the government to compensate people when it takes their property. It’s a vital protection for property rights.

While those lawsuits were ongoing, the U.S. Supreme Court ruled in August 2021 that the CDC moratorium — which the Biden administration extended — was illegal. The agency didn’t have the authority to do it.

As Christian Britschgi of Reason pointed out, the federal government then offered an audacious response to the suing property owners. Because the CDC’s eviction moratorium was technically illegal and lacked federal authorization, it argued, the federal government wasn’t required to pay them a dime. The Court of Federal Claims agreed with the federal government’s brazen response. It cited past case law that freed the government from having to pay any compensation for the wrongful acts committed by its agents. That court threw out the property owners’ lawsuit in Darby Development Co. v. United States.

That’s an outrage. Fortunately, that court didn’t have the final say. The United States Court of Appeals for the Federal Circuit recently sided with property owners and reversed that unjust ruling. It found that the CDC eviction moratorium, while illegal, clearly did have the endorsement of both Congress and the executive branch. It wasn’t conducted by a rogue staffer.

Ilya Somin with Reason noted that the waters in this case are a bit muddy. The evidence indicates both the Trump and Biden administrations enacted and extended the moratorium largely for political reasons. They didn’t truly think it would curb the spread of COVID-19. Still, the moratorium had a plausible public health rationale making it “normal” enough to qualify as authorized despite being unlawful.

“The government should not be able to hide behind its own illegality to avoid paying damages for that very illegality,” Greg Dolin, a senior litigation counsel with the New Civil Liberties Alliance, said. This commentary initially appeared in the Las Vegas Review-Journal.