When I heard about this order from the CDC, at first I couldn’t believe it. Not that those in the federal government wouldn’t issue such an order, but that it would come from the Centers for Disease Control and Prevention. So I found the notice in the Federal Register (the list of federal laws, regulations, and orders) and read it for myself.
While many states and cities have used COVID-19 as an excuse to infringe on the rights of their citizens, the federal government has been somewhat restrained. Focusing primarily on recommendations rather than orders, those in the executive branch of the federal government seemed to be trying to keep within their enumerated powers. That is, until the CDC published their “order” on September 4th.
The Centers for Disease Control and Prevention (CDC), located within the Department of Health and Human Services (HHS) announces the issuance of an Order under Section 361 of the Public Health Service Act to temporarily halt residential evictions to prevent the further spread of COVID-19.
CDC Notice on 09/04/2020
If you’ve followed my work for any length of time you probably guessed what I did next. I searched for Section 361 of the Public Health Service Act (42 U.S. Code § 264 Regulations to control communicable diseases). This part of the U.S. Code deals with the authority of the Surgeon General and the Secretary of the Dept. of Health and Human Services to create and enforce regulations that are necessary to prevent the introduction or spread of communicable diseases from foreign countries or between the states. That little piece of information is very important, since nothing in the Constitution grants Congress the power to write laws regarding public health. Although Congress does have the authority to regulate commerce with foreign nations and among the states (Article I, Section 8, Clause 3), public health is not commerce. Although I might consider an argument that stopping the transmission of serious diseases entering the union or between the states could be considered part of the general welfare of the United States, that is not the purpose of this article. With that in mind, let’s look at the details of this notice and the law it claims gives them the authority to promulgate it.
The Lie
So let’s take a look at Section 361 of the Public Health Service Act, as it was put into law under 42 U.S. Code § 264.
The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.
42 U.S. Code § 264 – Regulations to control communicable diseases
Notice that the law the CDC claims gives them the authority to issue this order does not actually give the CDC any authority at all. 42 U.S. Code § 264 grants the Surgeon General, with the approval of the Secretary of Health and Human Services, to make and enforce regulations. What’s more, those regulations are only to prevent the introduction, transmission, or spread of communicable diseases from foreign countries or from one state to another. So unless the Surgeon General and the Secretary can make a case that when someone is evicted for not paying rent they have somehow traveled to another state, they have no authority to issue such a regulation.
For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.
42 U.S. Code § 264 – Regulations to control communicable diseases
In another example of Congress making bad law, we see what the Surgeon General is allowed to do. Mostly it involves dealing with infected or contaminated items and pets, but then Congress drops in this “and other measures, as in his judgment may be necessary.”
What both Congress and the CDC seem to have missed is that federal law does not overrule the Constitution of the United States:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Constitution, Article VI, Clause 2
Why is that important? Because government does not have the authority to deprive you of your property without due process of law or to take your property for public use without just compensation.
No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
U.S. Constitution, Amendment V
What happens when a renter who has not met their obligations under a contract (in this case the lease), cannot be evicted? Not only is the government depriving the landlord of their property without due process, but since they cannot rent the space currently held by this tenant, the government is depriving them of the liberty to engage in commerce as well. Since the CDC claims they are doing this for the public good, you have the federal government taking private property for public use without any compensation.
If you replace tenant with a soldier, you have one of the justifications our Founding Fathers used to declare themselves independent from a tyrannical government.
For Quartering large bodies of armed troops among us:
Declaration of Independence
The British were quartering soldiers on private property without the owner’s consent, which is why we have a Third Amendment in the Constitution of the United States.
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
U.S. Constitution, Amendment III
Is the effect really different if the government says you must quarter another person on your property without your consent? The CDC has absolutely no authority to issue this order, and the Dept. of Health and Human Services has no authority to interfere with the public health issues within a state, to deprive people of their liberty and property without due process of law, or to effectively take over someones property for public use without just compensation. The justification listed in this notice is nothing but a lie.
Spreading Panic
There is currently a pandemic of a respiratory disease (“COVID-19”) caused by a novel coronavirus (SARS-COV-2) that has now spread globally, including cases reported in all fifty states within the United States plus the District of Columbia and U.S. territories (excepting American Samoa). As of August 24, 2020, there were over 23,000,000 cases of COVID-19 globally resulting in over 800,000 deaths; over 5,500,000 cases have been identified in the United States, with new cases being reported daily and over 174,000 deaths due to the disease.
CDC Notice on 09/04/2020
I say defining SARS-COV-2 as a pandemic is iffy.
pandemic: an outbreak of a disease that occurs over a wide geographic area (such as multiple countries or continents) and typically affects a significant proportion of the population : a pandemic outbreak of a disease
Merriam-Webster Online Dictionary
Yes, this disease occurs over a wide geographic area, but the CDC’s own reports show that it’s not affecting a significant portion of the population.
Nationally, the percentage of respiratory specimens testing positive for SARS-CoV-2 decreased from 5.2% during week 36 to 4.8% during week 37.
CDC Coronavirus Disease 2019 (COVID-19), Key Updates for Week 37, ending September 12, 2020
I don’t think 5% of the population is a significant portion. Furthermore, the CDC’s own report shows that only 6% of COVID deaths are related solely to the disease. On average, there were an additional 2.6 causes of death, meaning two to three other serious injuries or diseases also led to the death of the individual. That means of the 179,927 COVID deaths that the CDC reported by September 12, 2020 (.054% of the population) only 10,795 (.003% of the population) were due solely to the virus. While any death is tragic to family and friends, I think including people who were already seriously ill and probably approaching death in an attempt to scare people into handing over their rights is despicable. Even with the padded numbers, I don’t think five one-hundredths of one percent of the population (that’s 5 out of every 10,000 people) rises to the level of significant proportion of the population either.
The virus that causes COVID-19 spreads very easily and sustainably between people who are in close contact with one another (within about 6 feet), mainly through respiratory droplets produced when an infected person coughs, sneezes, or talks.
CDC Notice on 09/04/2020
The notice goes on to claim that the virus that causes COVID-19 spreads easily, but that does not show up in the CDC’s own data. If the virus spreads as easily as they claim, why are only 5% of the tests showing positive results? The notice also claims:
COVID-19 presents a historic threat to public health. According to one recent study, the mortality associated with COVID-19 during the early phase of the outbreak in New York City was comparable to the peak mortality observed during the 1918 H1N1 influenza pandemic.[2]
CDC Notice on 09/04/2020
However, when I looked at the footnote, guess what I found?
Faust JS, Lin Z, del Rio C. Comparison of Estimated Excess Deaths in New York City During the COVID-19 and 1918 Influenza Pandemics. JAMA New Open. 2020;3(8):e2017527. doi:10.1001/jamanetworkopen.2020.17527.
CDC Notice on 09/04/2020
That’s right, the CDC claims COVID-19 is an historic threat because they ESTIMATED a death rate higher than the 1918 influenza. In other words it was, at best, an educated guess. Seeing just how badly these experts missed the mark, I would say their guess wasn’t very educated at all.
Sleight of Hand
In the context of a pandemic, eviction moratoria—like quarantine, isolation, and social distancing—can be an effective public health measure utilized to prevent the spread of communicable disease. Eviction moratoria facilitate self-isolation by people who become ill or who are at risk for severe illness from COVID-19 due to an underlying medical condition.
CDC Notice on 09/04/2020
So, if we were in an actual pandemic, with which facts do not seem to agree, the CDC says eviction moratoria can be an effective public health measure. Notice the sleight of hand: First, the pretext is that COVID is everywhere. Then, they say that preventing evictions can help stop the spread of a communicable disease. This is the equivalent of a magician getting you to focus on one hand while the other performs the trick. What is that trick?
Under this Order, a landlord, owner of a residential property, or other person [3] with a legal right to pursue eviction or possessory action, shall not evict any covered person from any residential property in any jurisdiction to which this Order applies during the effective period of the Order.
CDC Notice on 09/04/2020
So the order is to protect a covered person from eviction. That could make sense, in certain situations, but the first question we have to ask is: What is a “covered person”?
“Covered person” means any tenant, lessee, or resident of a residential property who provides to their landlord, the owner of the residential property, or other person with a legal right to pursue eviction or a possessory action, a declaration under penalty of perjury indicating that:
(1) The individual has used best efforts to obtain all available government assistance for rent or housing;
(2) The individual either (i) expects to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return), was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
(3) the individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses;
(4) the individual is using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other nondiscretionary expenses; and
(5) eviction would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting—because the individual has no other available housing options.
CDC Notice on 09/04/2020
You know what you don’t see in the list of criteria for someone to be covered under this moratorium? Any indication that they might have COVID-19, been exposed to COVID-19, or be a carrier of COVID-19. Do you see the sleight of hand? This illegal order from the CDC has nothing to do with slowing the spread of COVID-19. Its purpose is to bribe the people who have had their livelihood, their freedom to pursue commerce, and their very right to live at liberty without undue government interference taken away. As compensation for state and local governments ruining your lives, the federal government will steal the very property you live on from its rightful owner, the landlord, thereby ruining their lives as well.
Conclusion
While this order is being couched in the language of compassion for those poor people who are out of work and cannot pay their rent, this order is nothing more than an illegal, immoral, theft of the American people. Those states and cities that have effectively placed their citizens under house arrest should be the ones paying for their illegal deeds, not the rest of the country. Furthermore, claiming authority that someone does not have is fraud,
fraud: Deceit; deception; trick; artifice by which the right or interest of another is injured; a stratagem intended to obtain some undue advantage; an attempt to gain or the obtaining of an advantage over another by imposition or immoral means, particularly deception in contracts, or bargain and sale, either by stating falsehoods, or suppressing truth.
Webster’s. 1828 Dictionary
Depriving someone of a right protected under the Constitution and laws of the United States under color of law is a federal crime as well.
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, … shall be fined under this title or imprisoned not more than one year, or both;
18 USC 242: Deprivation of rights under color of law
I suggest that each and every person who enjoys and values their rights contact Nina Witkofsky, Acting Chief of Staff for the Centers for Disease Control and Prevention and demand that this order be rescinded IMMEDIATELY.
Nina Witkofsky
Acting Chief of Staff
Centers for Disease Control and Prevention
1600 Clifton Road NE, MS H21-10
Atlanta, GA 30329
Telephone: 404-639-7000
Email: [email protected]
I would also recommend every landlord that values their properties contact their local FBI office and press charges against Ms. Witkofsky under 18 UCS Section 242. Remind them that any law repugnant to the Constitution is void:
Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.
Chief Justice Marshall – Marbury v. Madison
If we don’t want our property stolen by government, then we need to make sure those who are trying to steal it are held accountable. If they will not comply with the law, they need to be punished. We the People need to uphold the laws and the limitations we have put on our governments. Otherwise, we are no longer a republic or a land of laws and representation; we live under a dictatorship where the aristocracy in Washington, D.C. can do what they want while they tell Americans to “eat cake”.
