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Most regulations, laws, and government programs are not neutral in their impact on and the economy and society. Frequently picking winners and losers through which subset of the constituency benefits and the other group of voters and taxpayers that the policy discriminates against.  The idiom “regulation cuts both ways” encapsulates the notion that the consequences of regulation cannot be contained to the gains of the beneficiaries. Often the beneficiaries enjoy these perks at the expense of others. Because it is nearly impossible to secure complete unanimity among all citizens with the boundaries of a state never mind a nation; someone invariable will bear the external costs of the policy. Whether it be through higher taxes, revoked privileges, and rights, barriers to entry, or even legal sanctions; someone is bound to get the short end of the proverbial stick.

The advent of the pandemic has spurred a plethora of regulations, ordinances, laws,  and profligate monetary policy that operates to stifle the spread of the virus at the expense of other Americans. The actual effectiveness of these measures is debatable. Some of the oppressive examples of government fiat are flat-out spurious in the purported claims of impeding the transmission of COVID-19. One policy that has epitomized the welding of such questionable measures as means of maintaining public health has been the eviction moratorium. After being extended several times, last week U.S. district court judge Dabney L. Friedrich expressed that the eviction freeze was an overextension of the CDC’s authority. On many accounts, Judge Friedrich was justified in her assessment of the eviction ban. However, the polarizing nature of the policy inevitably makes a policy prescription in either direction discriminatory. Incentivizing both camps to form effective coalitions to combat their political opposition. Fostering ideal conditions for Bootleggers and Baptist’s coalition dynamics, like any other arrangement of political exchange, there needs to be an agent to provide the moral argument for the political activity. Naturally, lurking right around the corner is the beneficiary of that very same policy.

The Bootleggers and Baptists Favoring Overturning the Moratorium:

Coalition A:

Baptists:    Judge Dabney L. Friedrich and Proponents of Constitutional Conservatism.

Judge Friedrich and others voice concerns of the constitutionality of the orders direct by the CDC are quintessential Baptists. Why?  These individuals are arguing from the normative perspective of maintaining justice.  The very taproot of justice begins with making sure that the rules are fair and are being enforced properly. If the formal rules of our society are petty or capricious there is little hope for the nation being just. Hence, why highly esteemed critics such as Judge Dabney are crucial in assessing whether or not government agencies are stepping outside the boundaries of their legal limitations. Operating as a safeguard against overreach and other institutional abuses that need to be reigned in to avoid various conflicts of interest.

In her 20-page refutation of the moratorium order, Friedrich details how the specific actions of the CDC veer outside the permissibly established through legal restraint. The purposed extension of the eviction freeze through June would not justifiable as congress no longer supported this measure. Failing both prongs of the “Chevron Deference” test established in  Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984). Friedrich even expounds upon how the purported powers that congress initially conferred to the CDC fall outside of the scope of the Health and Service Act. Through expressing these concerns for a just administration of law, Judge Friedrich is a Baptist.

Bootleggers:  Landlords.

It would be a mistake to interpret assigning the role of “Bootleggers” to the landlords as an overt value judgment. Objectively, the landlords are the ones who stand to benefit the most from lifting the moratorium. There is nothing wrong with that from a moral perspective. Much like most economic agents, the landlords make an honest living by maintaining house units. Functioning as an odd hybrid between active and passive income. It was estimated that back in December 2020, that renters who were behind on their payments collectively owed $7.2 billion in rent.  Without any further analysis, it is quite clear that is a large sum of money. The moratorium on evictions has been economically detrimental to this sector of the economy.  Even engendering personal ruin for some of these individuals. Any individual in their position would be pleading to end the eviction moratorium. Otherwise, you are stuck having to provide maintenance and utilities for apartments where the resort is to pulling money out of your savings to continue providing housing services.

The Bootleggers and Baptists Favoring the Moratorium:

Coalition A:

Baptists:  The Biden Administration

On the opposite side of the fence, the Biden Administration is working to appeal Judge  Friedrich’s ruling.  While there is a potential of a dual-role actor dynamic lurking in the background, for simplicity’s sake we will assume the prima facie perception of this being a measure implement for the “public good”. The Biden Administration has defended maintaining the moratoriums on the normative basis of emphasizing the struggle of workers who have lost their jobs due to COVID-19. The  Whitehouse website has published statements detailing the statistics and numbers regarding renters impacted by the pandemic. Whether or not this concern for the economically disadvantaged is opportunistic or not is difficult to ascertain. However, regardless of the intentions, Biden’s Whitehouse assumes the role of the white knight, fighting on the behalf of the downtrodden. Please keep in mind, this assessment is based upon taking the statements made on the behalf of the president at face value.  Since all of the arguments have a moral dimension to them, we can only assign Biden and his Administration the role of Baptists. Acting as Judge Friedrich’s philosophical foil, defending positive rights while the Judge is actively defending negative rights.

Bootleggers:   The Renters.

Once again, assigning the role of “Bootleggers” to the renters impacted by the pandemic is not a value judgment. Much like the landlords, they are merely responding rationally to policy through attempting to preserve their self-interest. Naturally, much how no one would want to give their main source of revenue, no one would want to voluntarily surrender their shelter even if they lacked the means to pay their rent or mortgage.  However, the renters are “Bootleggers” in the narrow definition of the phrase, because they do stand to benefit from extending the duration of the eviction freeze.

7 thoughts on “Bootleggers & Baptists: XXIII- National Eviction Freeze

    1. A pragmatist would suggest to prefer the interests of the coalition that will be in the best interest of the public good. However, as the public choice literature clearly indicates there is no objective way to operational define “public good”. The question of how to maximize option that will benefit the most amount of people in society, is insurmountable in this situation (sorry John Stuart Mill). The plight of the landlord and tenant are both intertwined in the same root cause, COVID-related state intervention in the economy. Only acting to further substantiate your work regarding the applicability of the Takings Clause in rectifying the economic fallout of the shelter-in-place orders. While both parties deserve compensation due to these intrusive measures, if we could only afford to compensate one coalition who would be the one to provide the best consequences for society as whole?

      In the Calculus of Consent (1962) , typically some sort of side payment to the disadvantaged side are required to alleviate the external costs. One salient example of this is direct vote trading. Compensation for lost income in this case would be the “side payment”. This form of compensation would come at the expense of presently employed taxpayers. As means for correcting faulty government policies. Functioning to only transfer external cost rather than eliminate them. Leading me to suggest, despite the health and safety concerns engendered by the pandemic, these measures should have never been put in place. The complex web of economic disaster surely outweighs the safety concerns. At least based upon my quick a priori estimate. Especially with the use of good sanitation practices and the voluntary use of masks.

      Liked by 1 person

  1. Great work!

    My grandparents have been grappling with the implications of this moratorium firsthand. In their opinion (which obviously is drenched in bootlegger bias) some tenants have treated the eviction freeze opportunistically. Despite that many still have sufficient income to afford rent, why not exploit the sanction and simply direct it elsewhere?

    But it’s getting even worse :

    Liked by 1 person

    1. It easy to empathize with both sides of the issue. I am personally not a fan of most laws, but the shelter-in-place orders were a terrible idea. While mask mandates are intrusive, they were still a better policies than forcing businesses to shutdown. The economic costs of the shutdowns have been too large to justify. This tug-of-war between landlords and renters wouldn’t be occurring right now if had kept our economy open. The pandemic has left society with a litany of difficult choices and this is just the tip of the iceberg regarding the downstream consequences.

      Liked by 1 person

      1. I’ll second that.

        It’s worrisome to consider how many measures have been – and could be – justified on the grounds of public health! Since, as you noted, many arguments supportive of such measures are predicated on value premises, appealing to people’s sympathy for those in certain conditions (sickness, poverty, etc..) Then again, that is what much of legal positivism is centered around.

        Liked by 1 person

        1. An unfortunate side effect of the pandemic (no pun intended). Much like another crisis in history it has aggressive expanded the size and scope of the U.S, government. From a qualitative standpoint, it validates Robert Higgs’s Ratchet Effect.

          I do feel bad for the renters that can’t pay their rent due to the lockdown orders or reduced hours at work. The cause of their pecuniary was completely avoidable. Making their plight completely unnecessary.

          Liked by 1 person

  2. Yes, many of our present dilemmas are attributable to sweeping interventions. Invariably leaving a trail of unintentional consequences in their path. And I definitely share in your sympathy for struggling renters.

    Liked by 1 person

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