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The eviction moratorium in Virginia issued by the State Supreme Court has ended. But the eviction crisis in the Commonwealth looks ready to grow even worse.
So what could the General Assembly and/or Governor do?
Let's talk constitutionality of an eviction or rent freeze (1/14)
So what could the General Assembly and/or Governor do?
Let's talk constitutionality of an eviction or rent freeze (1/14)
The "Contract Clause" of the U.S. Constitution (Article I, section 10, clause I) provides that "No State shall...pass any ...Law impairing the Obligation of Contracts." So one would think a state-level rent freeze would be unconstitutional from a strict reading of the text (2/14)
But the U.S. Supreme Court has said otherwise. "Home Building & Loan Ass'n v. Blaisdell" (1934) involved the constitutionality of a MN law passed during the Great Depression that essentially suspended the selling of foreclosed homes and extended their right of redemption (3/14)
The Supreme Court found the law to be constitutional saying:
"The economic interests of the state may justify the exercise of its continuing and dominant protective power notwithstanding inference with contracts."
Further adding: (4/14)
"The economic interests of the state may justify the exercise of its continuing and dominant protective power notwithstanding inference with contracts."
Further adding: (4/14)
"if state power exists to give temporary relief from the enforcement of contracts in the presence of disasters due to physical causes...that power cannot be said to be nonexistent when the urgent public need demanding such relief is produced by other and economic causes" (5/14)
Virginia's Constitution also contains a Contract Clause (Article I, Sec. 11) with near identical language to that in the Federal Constitution. The VA SC addressed this Clause in "The Working Waterman's Association of Virginia Inc. v. Seafood Harvesters, Inc." 1984 (6/14)
In the "Waterman's" case, the VA Supreme Court viewed the Commonwealth's Contract Clause as "interpreted by this Court in a manner similar to the treatment of the federal clause by the United States Supreme Court" (7/14)
The VA SC further explained:
"The proscription against enacting statutes that impair the obligation of contracts does not prevent the State from exercising power that is vested in it for the common good, even though contracts previously formed may be affected thereby" (8/14)
"The proscription against enacting statutes that impair the obligation of contracts does not prevent the State from exercising power that is vested in it for the common good, even though contracts previously formed may be affected thereby" (8/14)
So an eviction/rent freeze would seem to pass constitutional muster under both the Federal & VA State Constitutions. With unprecedented unemployment numbers & further impending economic disaster on the way, the GA would certainly have the justification to act. (9/14)
But what about the Governor? Could he constitutionally act to freeze evictions or rent through executive action?
The answer may lie in The Virginia Emergency Services and Disaster Law (Chapter 3.2 of the Virginia Code). (10/14)
The answer may lie in The Virginia Emergency Services and Disaster Law (Chapter 3.2 of the Virginia Code). (10/14)
§ 44-146.17(1) of this law permits the Governor to issue any order "necessary to accomplish" purposes such as controlling, restricting, allocating, or regulating the use, sale production and distribution of commodities, material goods, and services. (11/14)
The VA AG's Office has interpreted this law as empowering the Gov. with "broad authority to take action" during emergencies: https://www.oag.state.va.us/files/Opinions/2002/02-069.pdf
The VA SC has also interpreted the law as bestowing the Governor with "broad authority" (Boyd v. Commonwealth, 1975) (12/14)
The VA SC has also interpreted the law as bestowing the Governor with "broad authority" (Boyd v. Commonwealth, 1975) (12/14)
With this "broad authority" conception of the Gov.'s power under the emergency laws to regulate goods and services, a constitutional argument could be made that the Gov. could exercise the same powers afforded the GA in issuing a rent/eviction freeze, as explained above. (13/14)
In essence, the Virginia Constitution, emergency laws, and court precedents provide ample support for either the GA or the Governor to act to address our Commonwealth's ever-growing eviction crisis by implementing a temporary rent or eviction freeze (14/14)
