CDC’s Eviction Moratorium is Unlawful, Unconstitutional
On Friday, September 4, the Centers for Disease Control and Prevention (CDC) issued an emergency order imposing a nationwide moratorium on certain residential evictions through the end of 2020. Under this rule, U.S. landlords who wish to evict tenants who have fallen behind on rent due to lost income or medical payments will have to wait until 2021 to do so, at the earliest.
Under the CDC’s order, no landlord may evict a tenant who:
- Has sought all available government rental assistance;
- Will earn no more than $99,000 in 2020 (or $198,000, if filing jointly);
- Can’t pay their rent in full due to a substantial loss of income or extraordinary medical expenses;
- Is trying to make timely partial payments, to the extent they can afford to do so; and
- Would, if evicted, likely end up homeless or forced to live in a shared living setting.
The CDC did not follow the normal rulemaking process in issuing its emergency order. Usually, under the Administrative Procedure Act (APA), a federal agency that wants to issue a new rule must first notify the public of its proposal and solicit public comment on its proposed rule. Here, however, the CDC dispensed with notice-and-comment rulemaking, relying on the “good cause” exception to the APA to justify issuing its eviction moratorium without first soliciting and considering public comment. (Federal agencies regularly rely on this exception to circumvent the notice-and-comment process, as we have previously discussed on these pages.)
Landlords who own rental properties, including millions of “mom and pop” investors who each own one to three properties, still owe monthly mortgage payments even if their tenants cannot pay rent. Curbing evictions without providing any relief to landlords or lenders may ease the pain on struggling tenants, but tenants are still legally liable for outstanding rent they have accumulated, as Professor Josh Blackman warns. And what if landlords cannot afford to make mortgage payments on rental properties they own? In much of the country, lenders are allowed to foreclose on such properties, because existing federal and state foreclosure restrictions generally apply only to owner-occupied homes.
How does an eviction moratorium relate to public health? The CDC argues that evicting people from their homes during a pandemic can leave them homeless or forced to live in congregate settings, and that such living arrangements are correlated with a heightened risk of COVID-19 outbreaks. The agency cites a recent report from The Aspen Institute finding that 30 to 40 million Americans may be at risk of eviction, based on an analysis of weekly U.S. Census data. And the CDC notes that allowing renters to remain in their homes will help them adhere to best practices regarding COVID–19 mitigation, such as social distancing, quarantine, and isolation.
The CDC’s order is not the first time the government has acted to prevent residential evictions due to the COVID-19 pandemic. In March, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which, among other things, imposed a 120-day moratorium on evictions from homes backed by certain federal programs. CARES Act § 4024. This moratorium expired on July 24, 2020. And most states put temporary limits on residential evictions—but, as of September 1, only about 20 states still had eviction restrictions in place.
What’s the source of statutory authorization behind the CDC’s eviction moratorium? The emergency order cites a federal regulation, 42 C.F.R. § 70.2, that empowers the CDC Director to take “measures to prevent [the] spread of … diseases as [he] deems reasonably necessary” if the Director “determines that the measures taken by health authorities of any State … are insufficient to prevent the spread of … communicable diseases from such State … to any other State.” The CDC also cites section 361 of the Public Health Service Act (42 U.S.C. § 264), which authorizes the Department of Health and Human Services to “make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one.”
Professor Ilya Somin, writing at The Volokh Conspiracy, explains the implications of a broad reading of the CDC’s authority under section 361:
This broad interpretation of the regulation would give the executive the power to restrict almost any type of activity. Pretty much any economic transaction or movement of people and goods could potentially spread disease in some way. Nor is that authority limited to particularly deadly diseases such as Covid-19. It could just as readily apply to virtually any other communicable disease, such as the flu or even the common cold.
Indeed, if the CDC’s rulemaking authority extends to any regulation that could conceivably slow the spread of any communicable disease, it follows that the agency could assume a vast role in regulating the daily lives of Americans—not just during the current COVID-19 pandemic, but whenever any communicable disease is spreading through the country.
A court reviewing the CDC’s eviction moratorium should not defer to the agency’s interpretation of its authority under Section 361. The moratorium is quite different from the examples of public health measures listed in the statute (“inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings”). And the moratorium applies to purely intrastate evictions, even where there is no likelihood that an evicted tenant will spread COVID-19 across state lines.
Whether the CDC is authorized to dictate the terms of landlord-tenant relations throughout the country is a question of deep “economic and political significance” that Congress would have assigned to the agency expressly had it wished to do so. See King v. Burwell, 576 U.S. 473, 486 (2015) (citing Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 324 (2014)). Interpreting section 361 as a broad grant of rulemaking authority would also raise constitutional concerns, as this reading of the statute might entail a delegation of Congress’ authority so vague and broad as to violate the non-delegation doctrine, which holds that Congress may not pass off its legislative power to the executive branch.
None of this means the federal government is powerless to deal with residential evictions, which pose a real public health concern amid a historic pandemic. If the Trump administration believes a nationwide eviction moratorium is necessary, it could ask Congress to pass a law authorizing such a moratorium. Would this fall within Congress’ power under the Constitution’s Commerce Clause? Although eviction actions by landlords are local in nature, they are a form of existing commercial activity that might, in the aggregate, have a substantial effect on interstate commerce. Given the breadth of the federal government’s authority under the Commerce Clause as interpreted by the Supreme Court, an eviction moratorium could conceivably survive judicial review. Compare NFIB v. Sebelius, 567 U.S. 519, 552 (2012) (distinguishing between compelling people to engage in commercial activity from regulations of existing commercial activity), with Wickard v. Filburn, 317 U.S. 111, 125 (1942) (Congress may reach activity that exerts a substantial economic effect on interstate commerce). Congress could also simply give money to struggling renters, enabling them to pay rent on time—which, in turn, would allow landlords to keep making mortgage payments and lenders to keep collecting on outstanding loans.
Beyond the apparent lack of statutory authorization for the CDC’s eviction moratorium, the order also raises serious constitutional concerns. For example, the order forbids any owner of rental housing from evicting a covered tenant even if the owner wants to quit the rental business and move into the unit herself. Forbidding landlords from evicting tenants in this circumstance may violate the Takings Clause, a constitutional that forbids the government from taking private property for public use without just compensation. The CDC’s order forces landlords to accommodate tenants who cannot pay, without compensating landlords for the occupation of their property. The CDC order is reminiscent of an eviction ban imposed by New York City that CEI challenged in the 1980s, in which the landlords prevailed on procedural grounds.