Biden’s Revival of Trump’s Eviction Moratorium is at Odds with His Place on the Legality of a Nationwide Masks Mandate –

In my previous post, I praised Biden’s action on the first day that Trump’s travel bans were lifted. I’m much less enthusiastic, to say the least, with his plan to revive the Trump administration’s statewide eviction moratorium, which the White House is expected to issue today. The Trump directive, issued by the Center for Disease Control, expired on December 31st (though Congress passed it by a month in its most recent stimulus bill). Biden intends to revive it and extend it until at least March 31st.

For reasons detailed in my September post on the Trump moratorium, this policy is harmful, illegal, and likely sets a dangerous precedent – as the rationale would allow the CDC and White House to do the same, almost all orders to shut down to adopt type of economic or social activity. The fact that it will now be under Biden’s rather than Trump’s aegis doesn’t make it any better. Whether the lipstick on the pig is Republican red or Democratic blue, it’s still the same pork underneath.

I would add that Biden’s attempt to revive the moratorium is at odds with his own belated but welcome recognition that he is not empowered to issue a nationwide mask mandate. Biden instead opted for the much more limited approach of promoting masks on federal land and in interstate traffic (which is broadly in line with current practice).

As I pointed out to the Washington Examiner in September, the same line of reasoning used to justify the eviction moratorium as a legally authorized public health measure can also be used to defend a national mask mandate. The latter is likely to be easier to defend as the link to containing the spread of disease is much stronger and clearer.

I believe that mask mandates can be perfectly justified in some situations (although survey data suggests that the vast majority of Americans are already routinely wearing masks, even in the absence of strictly enforced mandates). On the other hand, I am far more skeptical of the alleged need for eviction moratoriums. But both cannot be imposed at the whim of the executive, and both would set dangerous precedents for future administrations. Democrats, who like the fact that Biden has such a margin of discretion, should consider whether they are willing to trust the next Republican president with the same broad authority.

Biden is far from being the first president to take inconsistent positions on closely related issues. It could be that he and his advisors simply failed to consider the possible contradiction between their positions on these two issues.

A more cynical possible explanation is that Biden really doesn’t want to impose a nationwide mask mandate, knowing that enforcement is virtually impossible and can lead to dangerous confrontations between recalcitrant citizens and law enforcement officers at a time when tension persists between the public and the public Police are already high. But he may not want to simply say that he is fundamentally against such an order for fear of offending members of his own party who strongly support the idea. In contrast, Biden may not have such reservations about the eviction moratorium.

Whatever the motivation for the discrepancy, I hope the government will review its commitment to the eviction moratorium. If not, as Josh Blackman notes, the various lawsuits against Trump policies that are now targeting the new administration are likely to continue. I hope the plaintiffs will prevail.

NOTE: Plaintiffs in one of the Trump eviction moratorium lawsuits are represented by the Pacific Legal Foundation, where my wife works. I myself played a minor (unpaid) role in advising PLF on this case.

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