The Sturm und Drang of the CDC’s Home Eviction Moratorium

Abstract

The pandemic that has roiled the globe since late in 2019 has begun to have the same effect on the law. Beginning in March 2020, Congress, former President Donald Trump, and current President Joe Biden have engaged in a pas de trois, taking turns directing the U.S. Centers for Disease Control and Prevention (CDC) to issue nationwide moratoria preventing qualifying tenants from being evicted for not paying their rent. Most recently, Biden, bowing to political pres-sure to prevent evictions from restarting after more than a year’s delay, ordered the CDC to issue yet another moratorium, and, on August 3, 2021, the CDC did so. As it had done for some of its earlier orders, the CDC relied on a 1944 statute, the Public Health Service Act. The CDC did so even though, prior to 2020, the CDC had never before invoked that law as a rental protection device or an indirect form of rent control.

Landlords, real estate companies, and trade associations have brought a series of lawsuits challenging both the CDC’s statutory authority to issue those orders and their constitutionality. One case reached the Supreme Court of the United States, twice in fact. The first time, by a 5-4 vote the Court seemed to agree with the plaintiffs that the CDC had exceeded its statutory authority but none-theless denied them injunctive relief pending appeal because one justice guessed that the few remaining weeks of the moratorium would enable an orderly distribution of appropriated but undisbursed federal rental assistance funds. By contrast, when the case reached the Court a second time, the Court, by a 6-3 vote, granted the plaintiffs interim relief went out of its way to belittle the government’s argument, sending a strong message of displeasure at having to revisit the issue.

This Article will address the legality of the CDC’s August 3 moratorium: Part I will describe the steps that Congress and the President have taken to prevent a new and often fatal virus from engulfing the nation and killing a large part of its population. That discussion will include a history of the different CDC eviction moratoria. Part II will summarize the litigation that has unfolded since the moratoria went into effect, focusing on the Supreme Court’s two orders in Alabama Association of Realtors v. Department of Health and Human Services. The Su-preme Court did not issue a final ruling on the meaning of the statute, so Part III will analyze whether the CDC has the power to issue its August 3 order. Part IV asks why Biden directed the CDC to enter that order and what the long-term consequences might be for him by having done so.

Keywords: Centers for Disease Control & Prevention, CDC, Home Eviction Moratorium, Public Health Service Act, federal government overreaching