The Supreme Court defends property: the health emergency cannot overwhelm fundamental rights
The United States Supreme Court declared the order in which the Center for Disease Control and Prevention (CDC) had imposed a national moratorium on the blocking of evictions unconstitutional . The director of the CDC has acted by invoking a rule that gives him the power to adopt "the regulations in his opinion necessary to prevent the introduction, transmission or spread of communicable diseases from foreign countries in the States, or from one State to any other State". It is a law approved in 1944 and which has rarely been used in the decades that have passed, most often to prohibit the trade in individual goods capable of transmitting infections (in 1975, for example, it was used to block imports of a species of salmonella-carrying turtles).
Never before has this power been exercised to impose a measure, such as a freeze on evictions, capable of affecting property rights so deeply. Of course, one could reply, never before has there been an emergency as serious as the Covid-19 pandemic – but that this circumstance can justify the adoption of such intrusive policies is a highly controversial issue. . On one point, however, there can be no doubts: the health emergency cannot overturn the system of sources and the limits of political action which constitute a minimum and inalienable guarantee of respect for individual fundamental rights. The Supreme Court clarifies this at the opening of its opinion :
“It would be one thing if Congress specifically authorized the action taken by the CDC. But that didn't happen. Instead, the CDC has imposed a nationwide moratorium on evictions based on a decades-old statute that authorizes it to implement measures such as fumigation and pest extermination. It is unlikely that this statute will grant the director of the CDC the enormous powers that he claims ”.
In other words: it is one thing to discuss the reasonableness of the balance between divergent interests operated by a norm approved by Parliament, to which the Constitution attributes that power; another thing is to accept that that balancing can be accomplished by a subject without the necessary constitutional authorization, only because the emergency is invoked as a source-fact. "If a moratorium on evictions is to continue, Congress must specifically authorize it," concluded the Court: as we have had occasion to repeat on several occasions , the health emergency is not and can never be a justification for giving in to a situation of emergency of law.
The opinion of the Supreme Court deserves to be read and meditated carefully, because it is full of food for thought that goes beyond the single theme of rigorous respect for the forms of modern constitutionalism. First of all, there are words of balance and awareness of the importance that the protection of property rights plays in the architecture of a free society:
“The moratorium has placed millions of landlords across the country at risk of irreparable damage, depriving them of the payment of rent without any guarantee of eventual recovery. Despite the CDC's determination that owners bear the financial cost of the pandemic, many owners have modest means. And preventing them from evicting tenants who violate lease agreements intrudes on one of the most fundamental elements of the right to property: the right to exclude ”.
The position of the landlord is no less deserving of protection than that of the tenant, since the former may have incurred more or less substantial costs, or may have given up other opportunities to consent to that lease, and can rely on the rent for other personal expenses: even Covid does not allow the reasons of the landlords to be considered fully expendable to the benefit of that of the tenants, as also recognized by some Italian courts of merit that have raised the question of the constitutionality of the blocking of evictions before the Constitutional Court.
It is obvious that landlords and tenants have divergent objectives, and that the pandemic has sharpened this distance: however, not even such an extraordinary circumstance should authorize us to seek a solution to that conflict outside of private bargaining or the protection of the law .
And we come, in this way, to the political-cultural aspect that is the background of the opinion and which therefore deserves to be brought to the fore. Respect for the forms of modern constitutionalism, and therefore the attribution to the Parliament and not to the Executive (or even to a specific administrative issue, such as Authorities or Agencies ), deserves to be defended – in the absence of valid alternatives – first of all because it makes it more difficult to affect the exercise of individual fundamental rights.
In March 2020, with the outbreak of the pandemic, the American Congress had approved a first moratorium, expiring in July of that year: when that date came, Congress lacked the necessary votes to approve an extension, because between the deputies and senators did not form a majority convinced that the sacrifice of the owners' reasons was still justified in the light of the changing emergency conditions. Faced with the inaction of the Congress, the director of the CDC intervened, who did not have to persuade anyone other than himself of the advisability of his decision: and since then, the deadline has been extended from time to time. time, until he falls under the ax of the Supreme Court.
A similar situation has arisen in Italy, where the adoption of repeated decree-laws has served (certainly with stronger "formal" arguments compared to the US affair) to impose moratoriums on evictions – and therefore considerable compressions of the property rights of millions of people – without these being first discussed publicly and transparently in Parliament. At this point, it remains to be seen whether the judges of our Constitutional Court will follow their American colleagues in reminding the deputies and senators who are happy to shift the responsibility for the decision onto the Executive, that the promise of a government not of men cannot be violated. , but of laws.
The post The Supreme Court defends property: the health emergency cannot overwhelm fundamental rights appeared first on Atlantico Quotidiano .
This is a machine translation from Italian language of a post published on Atlantico Quotidiano at the URL http://www.atlanticoquotidiano.it/quotidiano/la-corte-suprema-difende-la-proprieta-lemergenza-sanitaria-non-puo-travolgere-i-diritti-fondamentali/ on Mon, 30 Aug 2021 04:01:00 +0000.