When COVID hit, it hit hard. And unless you were one of the hyper-rich bemoaning the perils of maintaining 6 feet distance on your yacht, it was a humbling experience. Before public safety became politicized, we so rallied around looking out for our own needs — as well as our fellow man’s — we had a short moment where we called out “entrepreneurial up-selling” for the greed it was. It was so unifying a shared experience that we even approached establishing a temporary Universal Base Income to help smooth out the roughened edges. Remember this?
I’m proposing $2,000 monthly payments throughout the pandemic and for 3 months after, because rent and bills are still due during this crisis and people are going hungry. It’s that basic.
— Vice President Kamala Harris (@VP) May 11, 2020
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Despite how nice of a sentiment that was, it never came to fruition. Well, except for landlords, especially those who stopped reading after “rent and bills are still due during this crisis.” They just got a big win.
On April 5, in Heights Apartments v. Walz, a unanimous panel of the US Court of Appeals for the Eighth Circuit ruled that a Minnesota state eviction moratorium (enacted for the purpose of mitigating the Covid pandemic) likely qualifies as a taking of private property requiring compensation under the Takings Clause of the Fifth Amendment. They based their ruling in large part on the Supreme Court’s June 2021 decision in Cedar Point Nursery v. Hassid, which held that temporary physical occupations of property qualify as “per se” takings, that automatically require compensation. Before Cedar Point, conventional wisdom assumed that most temporary physical occupations are subject to the complicated Penn Central balancing test, under which the government usually prevails.
The fun part of legal practice is when one way of handling things butts up against another. If this is a takings question, how grounded is the moratorium if it’s read as a function of police power? I have no clue and I am interested in finding out! I’d also like to take the moment to remember the ground-level implications of these high-theory questions — I hope that this gets resolved in a way that lets tenants continue to have a place to live.
@badgalmadi #tenantsrights #tenantrights #housingcrisis #housingforall #housingforeveryone
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Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.