Earlier this week, Gov. Sisolak announced an extension of his residential eviction moratorium. As has now become his signature style, this latest decree was made at the very last possible minute, leaving thousands of small mom-and-pop rental owners in the lurch, and with no apparent thought given to the second, third, or fourth-order consequences to the decision.
Like almost all broad-brush, blanket policies, simply banning evictions generally was always a terrible idea, and reflects a complete disconnect between what the governor imagines the world to be like versus what the world is actually like. Plenty of evictions have less to do with non-payment of rent and more to do with bad actors trashing a place, out-and-out squatting in a vacant unit, criminal activity, or otherwise misusing a property. Not shockingly, though, not paying rent is also often a co-occurring disorder with these other problems.
Not only does a total eviction ban prevent a landlord from protecting her investment, but it actually incentivizes (and therefore increases) bad tenant behavior. A few weeks ago I was talking to a property manager of lower income housing struggling with squatters who told me that people who were perfectly capable of paying rent simply chose not to, particularly if they weren’t planning to stay in the rental long-term. If you plan on buying a house and want to pad a down payment, why not bank the rent you aren’t paying and move out whenever you want? There may be consequences down the line, like bad credit or being sued over what was owed, but how much do you want to bet we’ll get a back-rent-amnesty decree next?
There were many better ways to go about this in order to protect those legitimately in need without destroying people who counted on their rental investments to pay for their own homes. First, the governor’s top priority needed to be fixing and expanding the unemployment system, instead of complaining about how he inherited it — and then dithering while people lost their jobs due to his shutdown orders. It was not hard to predict in March that he would need to immediately quintuple (at least) the size of DETR rather than shuffle leadership (and forget to apply for federal funds on time). The fact that this still hasn’t been done is completely inexplicable.
Second, his order easily could have limited the moratorium to situations where the only legal cause for the eviction would have been non-payment of rent. This would have protected landlords against bad actor tenants who destroy property or otherwise disrupted the lives of the rest of the apartment building or neighborhood (not to mention the long term economic damage to landlords themselves), without booting otherwise good tenants who were laid off due to the shutdowns. (The CDC’s supposed nationwide eviction moratorium, while totally unenforceable and nakedly unconstitutional all on its own, at least has these types of protections.)
As a broader matter, it would also have “flattened the curve” — with respect to stressing social services for people who did lose their housing. As it is now, whenever the moratorium ends (and it will, one way or another), it will end all at once, and the surge of newly homeless will overwhelm charities and government safety nets. And the longer we delay the inevitable, the worse the deluge will be when it comes.
Really, it’s the same stunted and myopic thought processes that has characterized the entire set of COVID-19 responses to date. It’s what happens when you don’t have a clearly articulated goal or endgame in mind before planning your strategy, and when you fail to ask, “And then what?” after every policy suggestion.
Part of the problem is that the governor’s actions are not those of a man who fully understands the costs of his pronouncements, whether monetarily or longer term societal damage. This disconnect is understandable, even if it’s inexcusable — he’s simply too isolated. He and the government employees who surround him are still getting paid (yes, I know he donates his salary, but that means he’s in no personal financial danger to begin with).
The only logic that keeps big casinos open while small bars remain closed relates unfortunately to political realities — casino executives donate more money to politicians (and their unionized employees are his political foot soldiers) than small business owners can afford, after all. I doubt very much that Mr. Sisolak twirls his mustache and only opens industries which donate to his reelection efforts. But I also just as firmly believe that if the small businesses — boutique shops versus Wal-Mart, or bars versus casinos — were as consequential on contribution reports, that they would absolutely be open today. There is simply no other explanation for the brazenly disparate treatment. It’s not like small businesses and the entrepreneurs who drive them aren’t just as critical to our economic recovery.
Many businesses and even local politicians have taken to simply begging the governor – on social media and elsewhere – to “allow” them to reopen so they can try to make a living from their own properties. No single person should have this much power over our lives and livelihoods, and certainly not for so long. Nowhere in either our state or federal constitutions is “begging” considered an adequate check on an executive’s claim of unlimited power. This isn’t how America is supposed to work. And yet here we are.
We need to shake off this supplicating attitude, especially where the mandates make so little sense. Because the governor’s strategy (such as it is) is meant to slow the spread of COVID, the disease will be with us for a longer time, which will in turn be justification in the governor’s mind for keeping his “emergency” powers indefinitely and playing judge, jury, and executioner with people’s livelihoods. I don’t believe the conspiracy theories that he’s creating this endless feedback loop on purpose, but conspiracy or no, the effect will remain the same.
The only way to break this cycle is to stop participating. There is no earthly reason why a bar cannot be open with the same social distancing parameters as a restaurant or a casino (and bars are no less part of the hospitality industry Mr. Sisolak claims is so important to him than are those casinos). Businesses being treated unfairly like this must continue to press their arguments in court.
One of the legal arguments I’m surprised hasn’t gotten more traction in Nevada is that the government owes compensation for depriving people of their property for a public purpose. Most people are familiar with the concept of eminent domain as it relates to forcing people to give up their house so the government can build a highway (or something). The Nevada Constitution is also protective of private property, and the law recognizes that a regulation can be very intrusive such that it “completely deprives an owner of all economical beneficial use of her property.” Such arguments are being pursued now in other states.
One of the seminal cases in Nevada on this concept involved a land owner/developer whose property was made substantially less valuable by height restrictions on buildings that were required because of proximity to McCarran International Airport, and also by the fact that an expansion of the airport meant more planes flying overhead. That owner successfully sued the airport and Clark County, arguing that he deserved to be compensated for his economic loss, notwithstanding the fact that his loss was a gain to the safety of every passenger flying into Las Vegas. Who was that property owner, who walked away with a cool $16.6 million from the government?
Why, none other than Steve Sisolak.
It’s about time for Gov. Sisolak to enjoy a taste of his own medicine. If his orders are worth it, fine – but the people whose businesses are destroyed deserve to be compensated. And if all those lawsuits threaten to break the bank, well, maybe just maybe the government should be a little less heavy-handed or over-broad with the “emergency” directives in the future, and actually spend a little more time and thought making sure they are even helpful in the first place.
This, by the way, is a great example of how important judicial elections are. Ask your candidates vying for a black robe whether they have the courage to protect fundamental liberties – including property rights – even amid public or political pressure to ignore them for a while.
Of course, this is all easier said than done. Lawsuits are a lot less of a threat when the courts can’t have trials because of those same COVID restrictions. It’s almost as if tearing apart the entire fabric of our society has massive, unintended consequences that will last far longer and be far worse than the virus itself.
At his press conference on Thursday, Gov. Sisolak asked for patience, and complained, “It’s easy to be a sideline critic or a Monday morning quarterback, but we need to start working together in order to make progress.”
This is whiny nonsense. First of all, it’s more like Saturday morning quarterbacking because the negative consequences and lack of efficacy of so many of the governor’s actions could have been seen coming a mile away by any reasonably competent adult — and so could the many ways to accomplish various goals far less intrusively. Besides, not everyone who tells you what you don’t want to hear is your enemy. “Working together” and “please stop pointing out how I’m screwing things up” are not synonyms.
Second of all, what’s this “we”? The reason it was such a big deal when the governor was caught enjoying a live musical performance while unmasked at a table with friends enjoying some drinks was that it seemed so logically contrary to the rules he’s been hectoring us about for months. I tend not to believe something is a crisis when the person telling me it’s a crisis doesn’t act like it’s a crisis. Both in the seeming casual violation of his own rules (or in writing rules so poorly that ordinary business owners can’t tell if they’re in compliance or not) and in his carelessly overbroad, inconsistent, and destructive efforts at eradicating illness, Mr. Sisolak just doesn’t act as if he has a lot of his own skin in the game.
The government must own the consequences of its actions, whether those consequences are direct or collateral, intended or not. Every time it doesn’t, that government loses its legitimacy and credibility with more and more people, and those people begin to either ignore or actively resist that government.
Because governments are terrible at policing themselves, the preservation of both our rights and good government also depends on us actively asserting and defending those rights, and to work to elect judges who will protect them. Pushing back means better government for us all in the end, which is why divided government is baked into our systems in the first place. The inevitable alternative is massive civil disobedience or worse, which won’t end well for anyone.
Orrin Johnson has been writing and commenting on Nevada and national politics since 2007. He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016. By day, he is a criminal defense attorney in Reno. Follow him on Twitter @orrinjohnson, or contact him at [email protected].