Federal judge vacates CDC’s nationwide eviction moratorium
Court rules agency lacks legal authority to impose it
The Washington Post
By Kyle Swenson
May 5, 2021
A federal judge in Washington, D.C., on Wednesday ruled that the Centers for Disease Control and Prevention overstepped its legal authority by issuing a nationwide eviction moratorium, a ruling that could affect millions of struggling Americans.
In a 20-page order, U.S. District Judge Dabney Friedrich vacated the CDC order, first put in place during the coronavirus pandemic under the Trump administration and now set to expire June 30.
“It is the role of the political branches, and not the courts, to assess the merits of policy measures designed to combat the spread of disease, even during a global pandemic,” the order states. “The question for the Court is a narrow one: Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not.”
The Biden administration has indicated it will appeal the decision. The ruling does not affect state or local eviction moratoriums. In Washington, D.C., for example, the city government’s ban on all evictions remains in place.
Landlords and property owners have consistently challenged the CDC order, arguing the policy sets an undue financial burden on business owners.
“We’ve argued from the beginning that the CDC lacked statutory authority to impose this, and we’ve had multiple courts agree with us on that,” said Luke Wake, an attorney for the Pacific Legal Foundation who has represented landlords in similar cases. “Today’s decision again vindicates our argument.”
Housing advocates, however, argued the new ruling only throws more confusion into an already chaotic policy space. Despite the moratorium, evictions have continued because of loopholes and differing legal interpretations.
After Wednesday’s decision, tenants’ rights advocates called for the Biden administration not only to defend the policy but to step up legal protections that will keep people in their homes. According to the Census Bureau, 1 out of 7 renters recently reported they were behind on payments.
“While this latest ruling is written more starkly than previous ones, it likely has equally limited application impacting only the plaintiffs who brought the case or, at most, renters in the district court’s jurisdiction,” said Diane Yentel, president and chief executive of the National Low Income Housing Coalition. “The [Department of Justice] should immediately appeal and the Biden administration should continue to vigorously defend and enforce the moratorium, at least until emergency rental assistance provided by Congress reaches the renters who need it to remain stably housed.”
Within hours of the decision, the Justice Department indicated that in addition to an appeal, the government planned to ask for a stay of the decision, meaning the moratorium would remain in place while the appeal was argued.
“The Department of Justice respectfully disagrees with today’s decision of the district court,” Brian M. Boynton, acting assistant attorney general for the department’s civil division, said in a statement. “In the department’s view, that decision conflicts with the text of the statute, Congress’s ratification of the moratorium, and the rulings of other courts.”
Landlords and property owners cheered the decision Wednesday. For months, industry advocates have argued that the moratorium was too harsh, hurting legitimate business owners and leaving property managers without the tools to oust problem tenants.
“Eviction moratoriums are dangerous, detrimental policies that harm housing affordability, housing providers and our residents,” Robert Pinnegar, president and chief executive of the National Apartment Association, said Wednesday. “The government must end enforcement of the CDC order and begin communications now to stakeholders, including judges, to prepare them for its ending.”
Since the moratorium’s early days, both tenants and landlords have wondered whether the action was the right policy tool for the job.
As the pandemic spread across the country, leaving economic damage and job loss in its wake, an estimated 40 million Americans were facing eviction, according to an August 2020 report by the National Low Income Housing Coalition, the Aspen Institute Financial Security Program, and the COVID-19 Eviction Defense Project.
A month later, the CDC rolled out a moratorium halting evictions for tenants who could not meet their monthly rent obligations because of the pandemic. The order applied only to individuals making $99,000 annually, or $198,000 for couples.
But both tenants and landlords quickly found fault with the order. The policy’s wording left room for legal interpretation, giving local judges latitude to apply the moratorium as they saw fit. New guidance issued in October did little to clarify the situation, triggering a series of legal challenges by landlords.
Since last year, six federal judges have weighed in on the ban, with three ruling it illegal and three supporting its legality.
Many of the recent challenges, including the case featured in Wednesday’s decision, have hinged on the CDC’s authority. Backers of the moratorium argue that although the action is outside the typical scope of the agency, Congress’s decision to extend the moratorium in December should have been taken as a sign legislators approved.
“Congress was trying to preserve the status quo by keeping the moratorium in effect through the presidential transition,” said Eric Dunn, director of litigation for the National Housing Law Project. “Well, that implies that Congress was approving that the CDC has the authority.”
Whether the recent decision will trigger a wave of evictions is unclear, advocates say. “There are now numerous conflicting court rulings at the district court level, with several judges ruling in favor of the moratorium and several ruling against,” Yentel said.
Dunn argued that the policy has become so confused by now that the moratorium’s impact has been weakened, particularly in jurisdictions without state or local protections.
“Practically, all these decisions have already made it so the CDC protection is basically a lottery ticket for tenants,” he said. “If you qualify you can sign the declaration and it may protect you or it may not. The judge may decide it applies to you or her or she may decide it does not.”
Wednesday’s ruling came as the Biden administration is in the midst of a massive project aimed at alleviating the economic stress pressing both landlords and tenants. As part of the American Rescue Plan enacted in March, the federal government is doling out $21.6 billion to local and state governments for rental and utility relief.
That money joins the $25 billion in aid set aside in December by Congress to help renters hit hard by the pandemic’s economic consequences. Eliminating the CDC protection would hurt families at the very moment they are beginning to repay pandemic debt, argued Emily Benfer, a Wake Forest University law professor and co-creator of the COVID-19 Housing Policy Scorecard with the Eviction Lab at Princeton University.
“Without this critical public health measure, the eviction floodgates would open, placing millions of families in jeopardy, thwarting efforts to control the pandemic, and impeding $46 billion in eviction prevention assistance,” Benfer said. “We know eviction spreads covid-19, we know it disrupts access to health care and we know it’s increasing health inequity among Black and Latinx people. The moratorium stops all of these harms.”