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Emergency eviction moratoriums were some of the first policies enacted to deal with the COVID-19 pandemic. They could end up outlasting it.

On Monday, New York Gov. Andrew Cuomo signed a bill that will stall most eviction proceedings for 60 days and impose a moratorium on evicting residential tenants who make a declaration of COVID-related hardship until May 2021.

The new law, which goes into effect immediately, also puts a moratorium on foreclosure proceedings through May for property owners with 10 or fewer units who make a similar hardship declaration. It also prevents local governments from seizing homes for unpaid taxes.

“This law adds to previous executive orders by protecting the needy and vulnerable who, through no fault of their own, face eviction during an incredibly difficult period for New York,” Cuomo announced in a statement. “The more support we provide for tenants, mortgagors and seniors, the easier it will be for them to get back on their feet when the pandemic ends.”

Cuomo issued his first executive order in this area in March, with a measure barring residential evictions and foreclosures for 90 days. Since then, the governor has enacted nine more executive orders extending and modifying these protections.

In June, he signed the Tenant Safe Harbor Act, which prevents tenants from being physically evicted for nonpayment of rent so long as Cuomo’s other executive orders restricting business activities and nonessential gatherings remain in place. The bill signed by Cuomo this week goes further, by preventing landlords from even filing for evictions and staying ongoing eviction proceedings for the next five months.

Landlord and tenant groups are typically on opposite sides of the eviction moratorium debate, but they have offered near-identical criticisms of the new law, calling it a temporary band-aid that does nothing to address the back rents tenants have accumulated or the financial hardship landlords have experienced.

“This bill is a stall tactic,” argued Jay Martin, executive director of a landlord association called the Community Housing Improvement Program, in a statement. “Closing the courts for a few months will not relieve the massive debt that tens of thousands of renters face, or provide any financial relief to the hundreds of housing providers who have provided safe, clean homes to millions of New Yorkers.”

“This bill is only a temporary solution to the urgent housing crisis we find ourselves in,” Housing Justice for All, a coalition of left-wing housing advocacy groups, told Politico. “In order to prevent massive economic disaster, our legislature must clear the back rent owed by New Yorkers and create a hardship fund for small landlords struggling to keep their buildings safe and afloat.”

New Yorkers will owe $435 million in back rent by January, according to a database maintained by the National Council of State Housing Agencies. The state is slated to receive $1.3 billion in federal emergency rental assistance funds.

The Empire State’s new law is part of a trend. Eviction moratoriums initially imposed by state governors as an emergency pandemic measure are now morphing into more permanent, legislatively approved programs aimed at mitigating the epidemic’s economic fallout.

A day before the enactment of New York’s law, President Donald Trump signed a relief bill that extended an eviction moratorium originally issued by the Centers for Disease Control and Prevention (CDC) through the end of January. (It had been scheduled to expire today.)

Earlier this month, Oregon lawmakers voted to extend their state’s eviction moratorium until June 30. California legislators, who in September passed an eviction moratorium for tenants who have paid at least 25 percent of their rent, are mulling a proposal to extend that policy through the end of 2021.

Imposing eviction moratoriums by executive fiat, as many governors have done, has always been legally dubious, and sparked more than a few lawsuits challenging them on separation of powers grounds. So it’s good, at least, that these policies are increasingly being enacted by legislatures.

That said, by passing eviction moratoriums into laws, officials are doubling down on a very blunt tool that comes with some unpleasant side effects and unintended consequences.

The most persuasive case for eviction moratoriums is that they prevent newly evicted people from moving in with family, friends, or into overcrowded homeless shelters, spreading coronavirus along the way. As vaccinations ramp up, causing COVID deaths and severe COVID cases to decline, that justification will become less and less convincing. Instead, moratoriums become a means for the government to provide free housing at landlords’ expense.

That’s obviously bad for property rights and for property owners who have their own operating costs to cover, and who are often put in the position of having to keep nonpaying tenants while turning away prospective renters who would pay their bills.

And despite the concerns of housing advocates that any lifting of moratoriums will result in a wave of evictions, landlords have every incentive to work out arrangements with otherwise good tenants who’ve fallen behind on the rent. The alternative is to risk a vacancy and a long search for a more reliable occupant during an economic downturn.

“Data so far show no indication of a heightened rate of eviction,” Salim Furth of George Mason University’s Mercatus Center told Reason in September. “Lighter-touch approaches, such as limiting the number of evictions, could prevent an (unlikely) homelessness emergency without impinging so drastically on private contracts.”

Some cities did see spikes in evictions in the late summer and early fall, after the early moratoriums were allowed to lapse. But those bumps can plausibly be explained by the moratoriums themselves, which led evictions that would have been filed over the course of several months to happen all at once.

Maintaining eviction moratoriums well into 2021 could well cause the oft-predicted eviction “tsunami” that the policy is intended to prevent.

With any luck, the vaccination effort that’s beginning this month will soon allow us to return to something approaching normal life. That return to normality isn’t helped by enshrining emergency policies into law.

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For decades, Executive Orders requiring executive branch agencies to submit draft regulatory proposals to the White House Office of Information and Regulatory Affairs (OIRA) have exempted independent agencies. A lingering question has been whether this is because the White House lacks the authority to impose such requirements on independent agencies, because the Executive Branch sought to respect the functional independence of such agencies, or because no Administration wanted to risk asserting such authority and then getting rebuffed in Court.

In October 2019, the Department of Justice’s Office of Legal Counsel conducted a review of this question, and concluded that the President could indeed require independent agencies to comply with the regulatory review requirements of Executive Order 12866. The memo was not released publicly, however, until this week, when it was posted on the DOJ website.

The introduction to the 31-page memo, “Extending Regulatory Review Under Executive Order 12866 to Independent Regulatory Agencies.” reads:

You have asked whether the President may direct independent regulatory agencies to comply with the centralized regulatory review process of Executive Order 12866 of September 30, 1993, 3 C.F.R. 638 (1994) (“EO 12866”). EO 12866 requires all agencies to submit an annual regulatory plan and agenda to the Office of Information and Regulatory Affairs (“OIRA”) in the Office of Management and Budget (“OMB”). But it exempts “independent regulatory agencies,” as defined in 44 U.S.C. § 3502, from the rest of the order, which requires agencies to submit significant regulatory actions to OIRA for review. OMB has proposed that the President eliminate that exemption and require independent regulatory agencies to comply with all of EO 12866.

Article II of the Constitution vests “[t]he executive Power” in the President, who “shall take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 1, cl. 1; id. § 3. By vesting the executive power in the President alone, the Constitution ensures that “a President chosen by the entire Nation oversee[s] the execution of the laws.” Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 499 (2010). The President can hardly ensure that the laws are faithfully executed “if he cannot oversee the faithfulness of the officers who execute them.” Id. at 484. The President’s constitutional authority therefore extends to the supervision of all agencies that execute federal law, including so-called “independent” agencies.

Although the Supreme Court has held that Congress may insulate independent agencies to some degree from presidential supervision, the proposed executive action would not test any statutory limits. Congress has often provided that the heads of those agencies are removable only for particular causes, such as “inefficiency, neglect of duty, or malfeasance in office.” E.g., 15 U.S.C. § 41. But statutory restrictions on removal, standing alone, do not bar those agencies from complying with EO 12866; indeed, the terms of such good-cause restrictions presuppose that the President may supervise an agency head to ensure compliance with the duties of office and with principles of good governance. Other structural features associated with independent agencies, such as multi-member governance, independent litigating authority, or open-meeting requirements, likewise do not preclude those agencies from complying with EO 12866. We therefore conclude that the President may direct independent agencies to comply with EO 12866.

This memorandum may be something of a gift for the Biden Administration. Unless the memo is withdrawn, it will serve as a basis for President Biden to assert greater authority over independent agencies, such as the Federal Communications Commission (FCC), Securities & Exchange Commission (SEC) and Federal Energy Regulatory Commission (FERC).

This assertion of authority may be particularly useful for the Biden Administration’s climate policy efforts, as it may make it easier to coordinate and direct climate policy initiatives across agencies, including those like the SEC and FERC, that have relevant authority. FERC, for instance, could adopt policies facilitating greater deployment of low-carbon power sources and accommodating the adoption of state-level carbon pricing. The SEC, for its part, could adopt policies requiring greater climate disclosures. If the President can require such agencies to engage in regulatory review, it would seem the President could also require climate-policy reviews as well.

It is possible that the assertion of such authority could provoke legal challenge, but would the courts stand in the way? The trend at the Supreme Court has been toward greater recognition of Presidential authority over agencies, limiting Congress’s ability to insulate the heads of agencies from presidential control, as in Free Enterprise Fund v. Public Company Accounting Oversight Board and Seila Law v. Consumer Financial Protection Bureau. The general thrust of both opinions would suggest a White House asserting the authority to impose centralized review requirements on independent agencies would stand a good chance of prevailing in Court.

The Trump Administration has laid the groundwork for a greater assertion of Presidential authority during the Biden Administration. We will see whether President Biden seeks to exercise it.

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President Donald Trump has slammed the Supreme Court for declining to hear lawsuits seeking to overturn the presidential election, saying that the justices—including the three he nominated—”chickened out,” revealing themselves as “totally incompetent and weak.” Yesterday, pro-Trump lawyer Lin Wood one-upped the president by attempting to implicate Chief Justice John Roberts in pedophilia and the murder of the late Justice Antonin Scalia.

Wood, who famously signed a verification statement for one of his post-election lawsuits “under plenty of perjury,” posed a couple of bewildering questions to the chief justice on Twitter last night: “(1) You are recorded discussing Justice Scalia’s successor before date of his sudden death. How did you know Scalia was going to die? (2) Are you a member of any club or cabal requiring minor children as initiation fee?”

By way of explanation, Wood added: “My information from reliable source is that Roberts arranged an illegal adoption of two young children from Wales through Jeffrey Epstein. I think we can all agree that Epstein knows pedophilia.”

In case that did not convince anyone, Wood suggested that his charges must be true because otherwise Roberts would sue him for defamation: “I have publicly accused him & Justice Breyer of being profane anti-Trumpers. I have linked Roberts to illegal adoption, Jeffrey Epstein, pedophilia & prior knowledge of Scalia’s death. Did Roberts skip class on defamation?”

This morning Wood responded to “the onslaught of attacks being made against me based on my revelations” about Roberts. “Before attacking me,” he wrote, “maybe fair-minded people would first ask Roberts to tell the truth. Or ask Jeffrey Epstein. He is alive.”

Trump has never (as far as I know) endorsed anything like these charges against Roberts, although he has publicly tangled with the chief justice and seemed open to speculation that Scalia did not die of natural causes. But the fact that Trump remains close with a prominent supporter who spouts stuff like this says something about his own judgment and mindset.

Trump was annoyed at “my friend” Wood for urging Republicans to boycott next Tuesday’s Senate runoffs in Georgia, which will decide which party controls that chamber (even though Wood’s advice was perfectly consistent with what the president has said about the state’s allegedly corrupt election system). But as The Daily Beast‘s Asawin Suebsaeng notes, both Wood and fellow conspiracy monger Sidney Powell “have kept in touch with Trump over the phone and/or in person” even while the president’s advisers were urging the president to keep his distance.

Despite Powell’s abrupt dismissal from the Trump campaign’s legal team, there is little difference between her baroque tale of election chicanery and the wild claims that both the president and his lawyer Rudy Giuliani continue to make. Whatever else you might say about Wood’s defamatory outburst, it makes Trump’s election fantasy look sane by comparison, which I did not think was possible.

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Like millions of people, I watched the viral video of dancing Boston Dynamics robots that made its way around Twitter this week. But unlike many of those millions, I did not think, “Wow, the future is so cool.” I thought, “We gotta keep these away from the cops.”

I admit that some of my aversion is a gut reaction to the uncanny valley. The dog-shaped ones creep me out the most. A predator, often headless, unfazed by rain or heat, without need for food or water or rest—that’s the stuff of science fiction nightmares. I know, objectively, these robots are an incredible technological achievement, yet I can’t erase that instinctive unease.

Still, my worry about misuse of these and similar robots by law enforcement is not merely an emotional reaction. Nor do I think there’s zero place for robots in policing. The problem I foresee is the introduction of robotics without a strong and specific legal framework dictating how they may and may not be used. 

The risk here is escalation, and the history of SWAT teams provides an excellent case study. These units were introduced to American policing a little over half a century ago, designed for a limited set of very dangerous circumstances, chiefly hostage and barricade situations or violent rioting.

As time went on, however, police departments realized they could use SWAT teams in more routine contexts, too. Now, fewer than one in 10 SWAT raids involve those high-danger situations. “Today in America SWAT teams violently smash into private homes more than 100 times per day,” writes Reason alum Radley Balko in Rise of the Warrior Cop. “The vast majority of these raids are to enforce laws against consensual crimes,” he adds, particularly drug use. American SWAT teams have raided homes and businesses for alleged offenses including unlicensed barbering, copyright violation, and parodying a local politician on Twitter. Some police departments use SWAT teams to execute every search warrant.

There’s a difference, however, between how SWAT use started and how robotics is being introduced to policing. When SWAT teams were created, state lawmakers passed legislation giving police new leeway in their work and deadlier tools with which to do it. By contrast, the residents of New York City learned their police department had obtained a Boston Dynamics dog when it was photographed in action at a crime scene. The acquisition does not appear to have been directed by any elected officials, though it’s possible a law enforcement transparency measure passed by the city council this past summer will compel the NYPD to report on the robot’s current use and devise policies for it going forward. So far, the NYPD has characterized the dog exactly as SWAT teams were described in their early days: a tool to keep officers safe in unusual emergencies, especially hostage and barricade crises.

Likewise, when the Massachusetts State Police borrowed a Boston Dynamics robot for “mobile remote observation,” a records request by the state branch of the American Civil Liberties Union (ACLU) turned up no departmental use policy. “We just really don’t know enough about how the state police are using this,” said the organization’s director of the Technology for Liberty Project, Kade Crockford. “And the technology that can be used in concert with a robotic system like this is almost limitless in terms of what kinds of surveillance and potentially even weaponization operations,” Crockford continued. “We really need some law…to establish a floor of protection to ensure that these systems can’t be misused or abused in the government’s hands.”

We do. Robots in policing are not inherently dystopian. It is a good thing that a robot can be sent to diffuse a bomb instead of putting a human officer at risk. There are some appropriate uses here. But we need laws delineating those uses and, I believe, prohibiting machine use of force against human beings (just as we must legislate police use of drones).

The move from defensive (e.g., bomb disposal) to offensive (e.g., restraining or even killing a suspect) use will happen if it isn’t prohibited. In fact, it has already happened: In Dallas in 2016, police jury-rigged a bomb disposal robot with explosives and used it to kill a sniper who had shot 12 officers, murdering five. Other departments have similarly used robots built to protect people to instead deliver nonlethal attacks.

Legislators—not unelected police department administrators—should be pre-emptively determining what kinds of robots police departments can acquire and how they may be used. Police robot acquisition, like any major new weapon or equipment procurement, should never catch the public by surprise. Law enforcement are supposed to be public servants, not masters.

In the bigger picture, there are three questions our lawmakers should be answering with legislation. First, do robots make police use of force more likely and/or more severe? This technology won’t be a neutral influence on officers’ decision making, just as SWAT teams haven’t been neutral. If it is substantially easier (by virtue of being safer for officers) to use force with a robot than without, that will change police behavior. It may sometimes change it for the better, of course, for removing the question of officer safety could make escalation to violence less likely in some circumstances. It may also change the behavior of the person being policed, making them more or less fearful and therefore more or less likely to fight or flee.

Second, what happens when robots progress away from significant human control? Bomb disposal robots don’t have artificial intelligence (A.I.) to make their own decisions. They are remote controlled by human operators. The Boston Dynamics machines are more sophisticated—they have “an element of autonomy”—but these too are mostly human-controlled. As A.I. progresses, however, we’ll run into moral dilemmas like those posed by self-driving cars: What ethics do you give the robot? This will be a matter of sincere disagreement, and it should be subject to public debate, not secretive departmental decision making.

Finally, when we do reach that point with A.I., the case will be made that robots should be entrusted with use of force (perhaps even more than humans) because they cannot operate outside their programmed rules and wouldn’t react out of fear for their own lives as a human officer might. A robot cop approaching Philando Castile’s car, for example, would not have shot him as Jeronimo Yanez did unless programmed to do so.

The problem, as with autonomous weapons of war, is threefold: Programming can be bad, and the entire “robots would be police without the burden of human frailty” argument rests on an unjustified assumption of perfect ethics and execution. Complex ethical decisions require more than rules—human compassion and conscience can’t be programmed, and subjecting human life to the decision of a robot is an affront to human dignity. Moreover, every problem we have with holding law enforcement accountable for misconduct today will be exacerbated ad infinitum if “the robot did it.” You can’t try or punish a robot, and it is inevitable that the manufacturers, programmers, and operators of police robots will be indemnified against liability in brutality cases if we permit the escalation I foresee to proceed unchecked.

We should take the lesson of SWAT teams to heart and build a strong fence of law around police robots before they get loose.

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For more, see this Feb. 18, 2020 press release from the U.S. Mint.

Thanks to Jennifer Wilson for the pointer, and see also this Nerdist story (Eric Diaz).

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