On May 5, 2021, the U.S. District Court for the District of
Columbia determined the Centers for Disease Control and
Prevention (CDC) did not have legal authority to impose the
national eviction moratorium. Accordingly, the CDC Order
prohibiting residential evictions nationwide was ordered
vacated.
On March 13, 2020, then-President Trump declared a national
emergency for COVID-19. Two weeks later, the Coronavirus Aid, Relief, and Economic Security Act
(CARES Act) was signed and included a 120-day eviction
moratorium for rental properties subject to federally backed loan
or federal assistance programs. On Aug. 8, 2020, President
Trump issued an executive order directing the
Secretary of the Department of Human and Health Services (HHS) and
the Director of the CDC to determine if “temporarily halting
residential eviction of any tenants for failure to pay rent are
reasonably necessary to prevent the further spread of
COVID-19”.
On Sept. 4, 2020, the CDC issued an Order (CDC Order) stating that
residential evictions must temporarily stop to prevent the further
spread of COVID-19. This CDC Order prohibited evictions of
individuals who had provided their landlord a declaration stating
they:
- “used best efforts to obtain all available government
assistance for rent or housing”; - expect to earn less than $99,000 in annual income in 2020, were
not required to report any income in 2019 or receive a stimulus
check under the CARES Act; - are unable to pay full rent because loss of income, house of
work or wages, layoff or extraordinary out-of-pocket medical
bills; - are using their “best efforts to make timely partial
payments”; and - believe an eviction would likely result in homelessness or
shared living.
This CDC Order was more expansive than the CARES Act because it
included all residential properties nationwide and was set to
expire Dec. 31, 2020. Additionally, any landlord who attempted to
evict a protected individual was subject to criminal penalties
including jail time and/or monetary fines. The CDC Order has been
extended three times and currently expires June 30,
2021.
Shortly after the CDC Order was issued, real estate management
companies brought a lawsuit against the HHS alleging the CDC Order
exceeds the CDC’s authority and raised other statutory and
constitutional issues.
In determining that the CDC had no authority to impose a
national eviction moratorium, the Court analyzed the CDC’s
statutory authority, specifically Section 361 of the Public Health
Services Act, 42 U.S.C. § 264(a). Section 361 authorizes the
Secretary of HHS to make and enforce regulations, in his judgment,
that are necessary to prevent introduction, transmission or spread
communicable diseases. The Secretary of HHS delegated this authority to the Director
of the CDC. When the Director of the CDC determines measures taken
by health authorities are insufficient to prevent the spread of
communicable disease, “he/she may take such measures to
prevent such spread of the diseases as he/she deems reasonably
necessary, including inspection, fumigation, disinfection,
sanitation, pest extermination, and destruction of animals or
articles believed to be sources of infection.”
The Court determined that the CDC Order and “any
regulations enacted pursuant to § 264(a) must be directed
toward “specific targets ‘found’ to be sources of
infection.” While the HHS argued this authorizes the Secretary
of HHS to “‘make and
enforce’ any regulations that, ‘in his
judgment are necessary to prevent the spread of
disease'”, the court determined the
HHS’s interpretation was overly broad. The Court stated,
“[t]he Public Health Service Act authorizes the [CDC] to
combat the spread of disease through a range of measures, but these
measures plainly do not encompass the nationwide eviction
moratorium set forth in the CDC [O]rder.”
Accordingly, the Court set aside the CDC Order and the real
estate management companies were granted expedited summary judgment
on their claims. While the HHS has appealed this decision and as
the nation awaits the CDC’s deadline of June 30, 2021, this
case and others across the country continue to define, and
redefine, landlord-tenant remedies in the wake of COVID-19.
Originally Published 21 June 2021
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