Over the last eighteen months, eviction moratoria at the federal and state level have protected millions of households from displacement amid a deadly pandemic. But these critical protections were thrown into disarray last month when, in two separate decisions, the Supreme Court struck down New York state’s eviction moratorium and, subsequently, the comparatively weaker federal ban.
Absent eviction protections, 7.8 million renter households behind on rent are at risk of imminent displacement.
The current crisis, while triggered by the COVID-19 pandemic, is many years in the making. More than half of US states ban rent control, and most have weak-to-nonexistent tenants’ rights. Evictions are not just about money, but also power — and the nation’s devotion to a property rights regime that gives landlords tremendous power over tenants’ day-to-day lives has laid the groundwork for the impending wave of displacement.
In the majority decision striking down the eviction moratoria, the court noted that halting evictions “intrudes on one of the most fundamental elements of property ownership — the right to exclude.” In essence, this is correct: the eviction moratoria altered commonly understood tenets of property rights in a way that dramatically reduced the power of landlords for a short time. That was a very good thing.
Property rights are considered fundamental to American society, a precondition for the “American Dream” of homeownership. But as the legacy of exclusionary zoning shows, there is no inviolable right to do what you will with your property. In fact, the government has long been willing to impose regulations on private property if doing so will maximize value for existing property owners and protect the existing social hierarchy — with white, wealthy homeowners at the top. The state will take a hands-off approach when it comes to a landlord’s decision to displace or exclude a tenant but impose rigid zoning regulations in the name of enhancing homeowners’ property values.
We have, in short, a property rights regime that is inconsistent on the question of regulation — because that inconsistency protects the wealth and power of elites at the expense of everyone else.
Only after months of public pressure during the pandemic did the federal government intervene to suspend the rights of owners to exclude, in contradiction to the foundational precepts of this property rights regime. The Centers for Disease Control and Prevention (CDC) imposed a federal eviction ban that, while not without loopholes, was historic in its scope.
But eviction moratoria are, by definition, temporary. Now, 7.8 million households remain behind on rent, and the public policy problem that led to the moratorium in the first place has not dissipated. Without intervention, we’re looking down the barrel of a mass eviction crisis.
Beyond the Moratorium
For liberals and centrists, the path out of the moratorium period is a means-tested rental assistance program that, if properly implemented, will avert the impending eviction crisis.
But implementation is already failing for two reasons. The first is that states are, so far, not requiring landlords to accept the money: landlords can forgo rental assistance in the name of their right to evict and exclude. The second is that the program is difficult to apply for, and rigorous income-testing requirements are blocking access to aid. These two factors combined mean that much of the $46 billion in federal emergency rental assistance has been slow to reach households.
Even if it were properly implemented, the liberal plan essentially returns us to the status-quo property rights regime: the precise system that has led us to the current crisis. Unless fundamentally challenged, it will continue to result in mass disempowerment and displacement.
Progressives across the country are fighting to improve rental assistance programs and ensure that many more households can stay housed. In New York, emergency rental assistance is included in the state’s source-of-income-discrimination laws, meaning that it is illegal for landlords to refuse rental assistance money. It is also illegal for landlords to pursue eviction of tenants while their rental assistance applications are pending.
In Philadelphia, landlords are unable to evict unless they have tried and failed to apply for rental assistance first — a model that Treasury secretary Janet Yellen, Housing and Urban Development secretary Marcia Fudge, and attorney general Merrick Garland are asking other states and localities to follow. States like California and New Jersey are also pursuing new eviction regulations that incentivize landlords to accept rental assistance and will keep tenants stably housed.
But these progressive interventions largely happen at the court level and only work when tenants are organized to enforce their rights. Too many evictions happen informally, and policy solutions that rely on individual tenants to take action will always leave the most marginalized households out. These solutions are also temporary, addressing only the relationship between tenants and landlords during the pandemic period in an effort to return to the pre-pandemic status quo.
That status quo was not good for tenants. Socialists and tenants’ unions should forge a different path out of the era of pandemic eviction moratoria, one that further erodes our exclusionary property regime and expands tenants’ ability to organize for stronger rights.
An Ambitious Housing Agenda
As moratoria expire across the country and rental assistance dries up, we should pursue reforms that enhance our collective power: good cause eviction protections, rent control, tenants’ rights to organize, and conversion of privately owned real estate assets into socially and democratically controlled housing.
Good cause eviction laws and rent control limit the reasons for which landlords are allowed to pursue eviction or raise rents. They allow tenants to organize unions in their homes, free from the fear of retaliatory eviction, and can therefore lead to improved living conditions as tenants fight for repairs. The state of New Jersey has had good cause eviction for decades; California, Oregon, and Albany, New York, passed good cause eviction measures more recently. This kind of measure, which encourages organizing and collective action, is what we need to permanently solve the housing crisis.
While Democrats and progressives believe the eviction crisis is caused by a temporary inability to pay the rent, socialists understand that it is also about power: landlords have too much, and tenants have too little.
By chipping away at the dominant property rights regime, we can increase the political power of renters to win a real social housing development program. If we take clear steps to curtail exclusionary property rights policies, as was done with the eviction moratorium, we can establish a new kind of relationship between landowners and tenants. Organized tenant unions can vastly increase democratic control over real estate assets. Social housing operators, perhaps cities or states themselves, could remove private property from the market and hold it in public trusts — and even build new social housing.
COVID-19 did not cause the housing crisis. It merely exposed it. The eviction moratorium, and how we navigate away from it, is a once-in-a-generation chance for a nascent national tenants’ movement to rise up and win durable policy reforms that will move us closer to socialized housing. We should use every tool at our disposal to take advantage of that opportunity.