A small item out of the Sixth Circuit Court of Appeals that deserves more notice: a unanimous ruling saying the federal government’s now-expired moratorium on evictions was unlawful.

Writing for the court, Judge John K. Bush said the Centers for Disease Control edict, which the agency said was intended to mitigate the spread of coronavirus, rested on powers the law simply did not allow. Worse, if the courts were to give the CDC a pass, and embrace its expansive reading of existing federal law…

…the CDC can do anything it can conceive of to prevent the spread of disease. That reading would grant the CDC director near-dictatorial power for the duration of the pandemic, with authority to shut down entire industries as freely as she could ban evictions.

There are always those who want government to exercise sweeping powers, even when no emergency is declared. But they must get passed those pesky restraints embedded within the law that (mostly) limit government power.

In a concurring opinion, Judge Amul Tharpar said that Congress has political and institutional incentives to pass the buck on hard issues to unelected bureaucrats in the executive branch. But that tendency doesn’t let Congress off the hook – particularly in the eviction case:

What’s the difference between executive-branch experts and congressional ones? Executive-branch experts make regulations; congressional experts make recommendations. Congressional bureaucracy leaves the law-making power with the people’s representatives— right where the Founders put it. Regardless of who came up with the idea, “[t]he sovereign people would know, without ambiguity, whom to hold accountable for the laws they would have to follow.”

The CDC’s unlawful regulatory overreach took away that fundamental layer of accountability. Courts have tended to restore that accountability. The real test is whether they do so in the face of the next crisis…understanding that governments have long used such events to permanently increase their power at the expense of liberty.