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Dear Landlord

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eye on the news

Dear Landlord

Courts are reining in the CDC’s ill-conceived ban on residential evictions. May 7, 2021
Covid-19
Politics and law
Economy, finance, and budgets

Among the least logical, most burdensome restrictions during the Covid-19 pandemic has been the nationwide ban on residential evictions imposed by the Centers for Disease Control and Prevention. Courts are finally starting to rein in this overreach. This week, a judge in the U.S. District Court for the District of Columbia blocked its enforcement nationwide after finding that the eviction ban exceeded the CDC’s statutory authority.

The CDC order, originally issued in September 2020 and twice extended by the Biden administration through June, makes it a crime, subject to a penalty of up to one year of imprisonment and a fine of up to $250,000, to evict certain tenants for not paying rent. The CDC relied on a section of the Public Health Service Act that authorizes regulations “necessary to prevent the introduction, transmission, or spread of communicable diseases” into the country or from one state to another. The agency claimed that evicted tenants might move into crowded living conditions or become homeless, which could spread infection.

The order was quickly challenged around the country on various legal grounds, to varying effect. Federal district courts in Louisiana and Georgia rejected claims that the ban exceeded the CDC’s statutory authority. But a district court in Ohio granted a declaratory judgment that a ban was not authorized by the statute, though it did not enjoin the CDC from enforcing its order beyond the plaintiffs’ case. The Sixth Circuit Court of Appeals recently upheld a district court decision in Tennessee that also found the order exceeded the CDC’s authority. Finally, another federal court in Texas struck down the CDC ban on different grounds—that it exceeded the government’s limited powers under the Constitution’s Commerce Clause.

Like the Sixth Circuit decision, the new decision in the D.C. district court held that the CDC order exceeded the statutory language. The agency had argued that the statute gave it broad authority to make and enforce any regulations necessary to prevent the spread of communicable diseases. But, citing accepted canons of statutory construction, the D.C. court held that the statute’s enumeration of specific measures that could be taken against infected “animals and articles” indicated that regulations had to be directed toward similar infected targets—not economic activities, like evictions. The court also quoted the Sixth Circuit, which noted that the order contained nothing “indicating Congress’s intent to invade the traditionally State-operated arena of landlord-tenant relations.” The new decision goes beyond previous cases, however, by imposing a nationwide injunction on enforcement of the ban, though the judge has agreed to stay the ruling while the federal government appeals.

This is an important step toward reversing an ineffective, overbroad, and unjustified policy. The CDC has provided almost no evidence that the ban actually limits the spread of Covid-19. The order was not limited to evictions that moved people into more crowded conditions. Unless evicted tenants were previously living alone and studiously avoiding contact with others, moving wouldn’t necessarily increase their risk of contracting or spreading disease. And, as the agency acknowledged, most people do not move across state lines, so a statute providing authority to make regulations to limit the spread of disease into the country “or from one State or possession into any other State or possession” should not apply to most evicted tenants.

If the Biden administration wants to address tenants’ ongoing plight, a better solution would be to direct money to the landlords of tenants who find themselves in arrears. Small landlords have been unable to collect rents for nearly a year but remain liable for their own mortgages and bills. Providing rent payments will keep them afloat, preserve the supply of rental housing, and let financially strapped tenants stay in their homes. Such a policy would have the added benefits of complying with the law and leaving principles of constitutional federalism intact.

Photo by Tami Chappell / AFP via Getty Images

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