Members of the New York state Assembly appear on the floor of the Assembly chamber during a special legislative session to extend pandemic era eviction protections in wake of Supreme Court decision lifting the moratorium at the state Capitol, Wednesday, Sept. 1, 2021, in Albany, N.Y.

Photo: Hans Pennink/Associated Press

The Supreme Court last month partially blocked New York’s eviction moratorium, but Democrats in Albany shrugged off the rebuke and last week enacted another ban that goes through Jan. 15. The new ban raises fresh constitutional issues, so the Justices may get another bite at this big apple.

New York’s previous ban had allowed nonpaying tenants to stay if they claimed to have suffered a pandemic-related hardship. Landlords weren’t allowed to challenge their assertion. The Supreme Court held 6-3 that this violated the due process clause and “longstanding teaching that ordinarily ‘no man can be a judge in his own case.’”

Under the new ban, landlords can challenge their tenants’ claims, but they must file “an affidavit under penalty of perjury” certifying that they believe “in good faith that the hardship certified in the hardship declaration does not exist.” Landlords could face criminal penalties if a court decides they haven’t proven a tenant’s claims are false, and New York courts are notoriously friendly to tenants.

States have broad police powers under the Constitution to protect public health and safety, but their authority is not limitless and their actions are subject to judicial scrutiny. Last fall the U.S. Supreme Courtblocked then Gov. Andrew Cuomo’s pandemic emergency restrictions on houses of worship. As Justice Neil Gorsuch wrote, “Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.” That’s as true for landlord property rights as it is for religious liberty.

The Rent Stabilization Association, which represents 25,000 New York City landlords, says it plans to seek an injunction against the new evictions ban. Landlords declined to challenge the previous ban as an unconstitutional taking—i.e., a government seizure of private property for public use without just compensation. But this time it should.

The Court last month enjoined the Centers for Disease Control and Prevention’s nationwide evictions moratorium for exceeding statutory authority, but the unsigned opinion by the 6-3 majority also noted that “preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership—the right to exclude.”

Justices cited the Court’s Loretto (1982) decision that found New York had engaged in a taking by requiring landlords to give cable companies access to their property. The Court broadened that precedent in Cedar Point Nursery this summer, holding that a temporary restriction on a landowner’s right to exclude constituted a per se physical taking.

New York is forcing landlords to allow tenants to physically occupy their property for months with no guarantee of just compensation. Its Emergency Rental Assistance Program covers a maximum of 15 months of rent, and the state has been slow and incompetent in rolling it out. With the new law, a moratorium will have been in place for some 22 months, and some halted evictions predate March 2020.

Landlords who receive government rental assistance aren’t allowed to raise rent for a year even if their property taxes and utility and maintenance costs increase. An eviction moratorium may have been justified amid the uncertainty of the early pandemic. But the economic and public-health emergencies ended long ago, and New York’s constitutional sabbatical needs to stop.

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