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The Trump administration’s eviction moratorium goes into effect Friday, criminalizing rental property owners across the country from evicting tenants for the non-payment of rent. At the same time, legal controversies about similar state and local policies continue to flare up.

Last week, several landlords in Seattle, Washington filed suit against their city and state governments for imposing eviction bans, which the plaintiffs argue are an unconstitutional violation of their property rights.

Washington Gov. Jay Inslee (D) issued one of the country’s first, and most comprehensive, eviction moratoriums in late February in response to the early outbreak of coronavirus in that state, banning landlords from filing for eviction unless a tenant is creating a significant health and safety risk, or if the owner is planning on selling or moving into the property. That moratorium was extended in July and is currently set to expire in mid-October.

Seattle Mayor Jenny Durkan issued her own eviction moratorium in March, which sunsets either at the end of the year or when the mayor calls an end to the city’s state of emergency.

This was followed by the Seattle City Council passing an ordinance that prevents evictions within six months of Durkan’s moratorium expiring. The council also passed an ordinance giving tenants a set amount of time to pay back rent that they owe. Like the state moratorium, Seattle’s eviction ban prevents all evictions save for cases where a tenant poses an imminent health or safety risk to other tenants.

The plaintiffs in last week’s lawsuit include two small rental property companies and one individual landlord.

One plaintiff, El Papel, LLC, alleges that two of its two tenants have refused to pay rent since April and that one of them has tried to get other renters in the building to engage in a rent strike. Another plaintiff, Karvell Li, has a tenant that has not paid rent consistently since June of last year, and who has refused to negotiate payment plans with Li.

A third plaintiff, Berman 2, LLC, owned by Osho Berman, has historically provided housing to lower-income and formerly homeless renters at below-market rates, according to the complaint. Berman has six tenants who are not paying rent and who have refused to negotiate any sort of payment plan.

“The blanket eviction ban puts landlords at the mercy of tenants who do not to pay rent, whether they face financial hardship or not,” reads the lawsuit, which has been filed by the Pacific Legal Foundation. “The eviction bans have upended lease obligations and stripped landlords of one of their most basic of property rights—the right of possession—leaving them with no bargaining power and no remedy against non-paying tenants.”

The lawsuit makes two constitutional claims against the state and city eviction bans, says Ethan Blevins, an attorney with the Pacific Legal Foundation. The first is that these policies violate the U.S. Constitution’s prohibition on states passing laws “impairing the obligation of contracts.”

“Eviction is the primary enforcement mechanism” for rental contracts, says Blevins. “When you remove the enforcement mechanism for a violation of the contract, as is the case here, you’ve impaired the contract.”

Preventing landlords from repossessing their property from non-paying tenants, argues Blevins, also amounts to a taking of property without just compensation in violation of the Takings Clause of the Fifth Amendment to the U.S. Constitution.

“When the government forces you to allow that person to continue to reside there and you can’t repossess it, that’s taking a valuable property right,” says Blevins.

In comments to The Seattle Times, spokespeople for both Durkan and Inslee defended their respective eviction moratoriums as legal emergency measures to prevent the pandemic from spawning an eviction and homelessness crisis.

So far during the pandemic, the number of people paying at least part of their rent has stayed pretty steady at around 90 percent at higher-end properties, which is only slightly less than where payment rates were last year. The percentage of people paying rent at is worse at lower-end buildings.

The lack of a huge surge in non-payment weakens the legal case against eviction moratoriums, Edmund Witter, managing attorney for the Housing Justice Project at the King County Bar Association in Washington, told The Seattle Times.

“Delinquency rates have not been horrible,” he said to the Times. “The reality is I don’t think [landlords] have too much to complain about right now.”

Blevins counters that there’s been no surge in evictions in places where moratoriums have expired. Data from Princeton University’s Eviction Lab shows eviction filings are below historic averages in almost every city.

In late June, a U.S. District Court in New York upheld that state’s eviction moratorium in the face of a legal challenge from landlords, ruling that the emergency created by the COVID-19 pandemic justified the moratorium and that limitations on when property owners could file for eviction don’t count as a taking.

The Pacific Legal Foundation had sued the California Judicial Council—the rule-making body for that state’s court system—over the council’s eviction moratorium on separation-of-powers grounds in June. The Judicial Council announced in mid-August that they’d let their ban to expire. The California legislature has since passed a statewide extension of that moratorium.

The fact that Seattle’s eviction moratorium expires six months after the emergency, and that both Washington and Seattle’s eviction moratoriums protect tenants who haven’t suffered pandemic-related financial hardship, makes them more vulnerable to lawsuits.

“It’s extending beyond what’s necessary to deal with the public health crisis or to deal with the economic fallout from the pandemic,” Blevins says. “If a law isn’t reasonably related or proportional to an emergency, then I think it’s more susceptible to legal challenge.”

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Like co-blogger Jonathan Adler, I was greatly impressed by Paul Rosenzweig and Vishnu Kannan’s recent article on “Repairing the Rule of Law: A Post-Trump Agenda.”I agree with nearly all of their proposals, with the possible exception of DC statehood. On the latter, I don’t have strong views either way, though I agree with Jonathan’s comment that it doesn’t really qualify as a rule of law issue. Jonathan is also right to emphasize that these reforms (and those Jonathan himself adds to the list) are worth pursuing regardless of who wins the November election. Most of them address issues that are not unique to Trump, even if his tenure in office has highlighted their importance.

I would add two other items to those proposed by Rosenzweig, Kannan, and Adler. Both are also issues that predate Trump and are likely to outlast him, even though his abuses of power have highlighted their importance:

1. Eliminate virtually limitless delegations of power to the executive over trade and immigration—and possibly other areas.

As currently interpreted by the Supreme Court, the law gives the president the authority to impose almost any immigration or trade restrictions he wishes, for virtually any reason. That is both bad policy and deeply inimical to the rule of law. I discussed these issues in  greater detail with respect to immigration here, here, and here, and trade here.

Most recently, a similar problem has emerged from the Trump administration’s claim that the Center for Disease Control has virtually limitless authority to enact any regulation that might in some way reduce the spread of contagious disease (which effectively means the power to suppress or restrict almost any activity of any kind).

As discussed in various pieces linked above, this can be accomplished by stronger judicial enforcement of the nondelegation doctrine. But it can also be achieved by Congress passing laws paring back or eliminating the relevant statutes. I suspect we will ultimately need some combination of both. If claims of limitless

2. Subject immigration restrictions to the same constitutional constraints as those that apply to other federal laws.

As described in greater detail in my October 2019 Atlantic article on this subject, current Supreme Court precedent largely exempts immigration restrictions from most of the constitutional constraints that apply to virtually all exercises of federal power. This enables the President and Congress to engage in otherwise unconstitutional discrimination on the basis of religion, ethnicity, and political speech, and to exempt immigration detention and deportation from due process constraints that regulate other serious deprivations of liberty. The effect of this double standard is both a menace to the rule of law that lacks any basis in the text or original meaning of the Constitution, and a whole host of injustices (including many that impact US citizens as well as potential immigrants).

Eliminating this double standard, would not result in the end of all immigration restrictions. Far from it, in fact. But it would eliminate the use of unconstitutional discrimination, and subject enforcement measures to the same types of due process constraints that we take for granted in other areas of law.

As with nondelegation, the elimination of constitutional double standards on immigration law can be accomplished by some combination of court decisions reversing or limiting the relevant precedents, and congressional action. The No Ban Act proposed by congressional Democrats would be a great start on the latter front. It would impose important new constraints on both discrimination and delegation in the immigration context.

Much more can be said both on these two topics and on the more general issue of strengthening the rule of law. I am grateful to Paul Rosenzweig, Vishnu Kannan, and Jonathan Adler for jump-starting this much-needed discussion, which I hope will continue over the next few months and beyond.

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U.S. labor law provides that, if the National Labor Relations Board finds that an employer has violated labor law rules, the employer can be required to announce that finding to employees. And in some situations (apparently quite rarely), the NLRB has the power to order that the employer’s president “personally read the NLRB’s remedial notice to an assemblage of the company’s employees.”

In 1983, then-Judge Ginsburg dissented, in a passage that (to my surprise) I hadn’t seen until a few days ago; I thought it would pass it along:

The Board’s order specifies that the Company’s “owner and president, Rizzuto, … shall … read the [NLRB’s notice ordering the employer to cease and desist from unfair labor practices] to current employees assembled for that purpose….” …. Here, the president’s personal involvement was … conspicuous. His voice behind the Board’s order might most authoritatively indicate to employees that Conair will comply with the directive.

Nonetheless, a reading order “directed at a specified individual” is a “startling innovation.” Such an order would occasion no surprise in a system in which those who offend against state regulation must confess and repent as a means of self-correction, or to educate others. But it is foreign to our system to force named individuals to speak prescribed words to attain rehabilitation or to enlighten an assembled audience. The Board, I believe, has not thoughtfully considered this point.

A forced, public “confession of sins,” even by an owner-president who has acted outrageously, is a humiliation this court once termed “incompatible with the democratic principles of the dignity of man.” It has a punitive, vindictive quality, and is the kind of personal performance command equity decrees have avoided. See Restatement (Second) of Contracts § 367 (1979); Lumley v. Gye, 2 El. & Bl. 216, 118 Eng.Rep. 749 (Q.B.1853); cf. Lumley v. Wagner, 1 DeG., M. & G. 604, 42 Eng.Rep. 687 (Ch.1852) (acknowledging lack of authority to grant specific performance of defendant’s concert singing obligations, court issued injunction preventing defendant from breaching covenant not to sing elsewhere).

Moreover, … a reading of the notice by the president may be less effective than a reading by another responsible officer. The former, humiliated and degraded by the personal specific performance order, may demonstrate “by inflections and facial expressions, his disagreement with the terms of the notice.” The latter, assigned the task but lacking the same personal involvement, may perform it with less distaste, more detachment, and thus with greater credibility. I would not single out the president here, or any other named individual, hand him lines, and make him sing.

Judge Ginsburg was in dissent there, and her views did not persuade Judge Wald—or the third panel member, then-Judge Scalia. But my quick research that more recent decisions have largely agreed with her, and provided that any such order must allow either for the notice to be read by some other corporate officer, or, if the company so chooses, by an agent of the NLRB. Consider, for instance, this 2016 D.C. Circuit opinion by Judge Stephen Williams:

For those familiar with 20th century history, such an order conjures up the system of “criticism-self-criticism” devised by Stalin and adopted by Mao. “Criticism” generally took the form of an attack on the target by his or her peers at a meeting with fellow workers, spouting claims fed them by powerful members of the Communist party (on pain of themselves being tagged enemies of the people), and then regurgitated by the target (“self-criticism”) in the hopes that full confession might avert dispatch to the gulag, torture or execution.

What is the subtext communicated by the sort of scene the Board would mandate? What is communicated to the assembled workers and the perpetrator himself? “You see before you one of your managers, who normally has a responsibility to make important choices as to your work. But who is he? Not merely is he a lawbreaker, but he is a pathetic creature who can be forced to spout lines some government officials have put in his mouth. He is not even a parrot, who can choose when to speak; he is a puppet who speaks on command words that he may well abominate. We have successfully turned him into a pathetic semblance of a human being.” Of course, one may say, here it is just that the mighty have fallen; he was a lawbreaker. But fallen so low? Fallen to a condition that denies his autonomy? Cf. United States v. Gementera (9th Cir. 2004) (Hawkins, J., dissenting) (saying that the sole purpose of a sentence requiring a convicted mail thief to stand outside a post office for eight hours wearing a sandwich board stating, “I stole mail. This is my punishment” was “to turn him into a modern day Hester Prynne”)….

Indeed, some judges express reservations about even the NLRB-reading option:

The General Counsel and Union argue that the option for a Board agent to conduct the reading alleviates any First Amendment problems. But like the Fifth Circuit, this option “does not assuage our concerns.” The notice is phrased as if Sysco’s employees are speaking the words (e.g., “We will not threaten you that a strike is inevitable …”). It requires named individuals—Shaeffer and Barnes, if still employed by Sysco—to stand at attention as human demonstratives in the employer’s confession of sins. And it runs headlong into the Supreme Court’s recognition that compelled speech violations extend to situations “where the complaining speaker’s own message was affected by the speech it was forced to accommodate.” Rumsfeld v. Forum for Acad. & Institutional Rights, Inc. (2006).

Now I don’t want to overstate the influence of Ginsburg’s argument here: Of course, the criminal justice, rightly or wrongly, routinely lowers defendants’ sentences if they “accept responsibility” by publicly acknowledging that they were wrong. That’s not strictly speaking a court-ordered “confession of sins,” but it’s very nearly that (since a defendant who declines to confess his sins that way will likely be given a materially longer sentence than one who does).

Also, as the citation to the Gementera dissent shows, some courts (such as the Gementera majority) allow even court-ordered public self-shaming; and of course the rules may be different when the government is acting as employer or as K-12 educator than when it’s acting as sovereign. As with many forceful articulations of important principles, there are limits to how far the legal system (or even Justice Ginsburg herself) would follow that articulation. Still, the Ginsburg passage struck me as interesting and surprisingly little-known, so I thought I’d pass it along.

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