In a move it finalized on Friday of last week, the Trump administration banned many evictions through the end of the year. Readers furrowed their brows in puzzlement when they learned which part of the government this decision was coming from: the Centers for Disease Control.
Does the law authorize this public-health agency to ban evictions? No, not really, and the courts should not let this stand.
Under the CDC’s notice, a tenant can prevent himself from being evicted by giving his landlord a copy of a federal form. On this form, the tenant must declare, under penalty of perjury, that he has tried to obtain any government assistance that’s available to pay the rent; falls within the income requirements (meaning he qualified for a stimulus payment, didn’t have to file taxes last year, or expects to earn $99,000 or less this year — twice that for couples); is unable to pay rent thanks to loss of income or large medical expenses; is trying to make partial payments; and will become homeless or have to “live in close quarters in a new congregate or shared living setting” if evicted.
The rule doesn’t stop these tenants’ rent bills from piling up, but it does allow them to stay in their homes through the end of the year whether they pay those bills or not. Good luck collecting the money after that, unless the federal government steps in to foot the bill. Landlords who violate the rule can be hit with a $100,000 fine and a year in jail.
As a policy, this will help people who need it, but it will also let renters take advantage of their landlords, especially as the economy continues to improve. (Evictions are actually relatively low this year, and were during the Great Recession as well, in part because landlords hesitate to kick people out at a time when decent tenants are hard to come by.) As Jayme Lemke of the Mercatus Center points out, the action could also discourage owners from renting out their property or increase the price of default insurance, which in turn could drive up rents.
The legal aspects of the rule, however, are more troubling than the policy issues. This is obviously economic relief, a way of extending the eviction moratorium that Congress enacted earlier this year but thus far has failed to renew. But that’s not the way it’s being presented, because the executive branch doesn’t have the authority to unilaterally ban evictions for economic reasons. Instead, this is officially a public-health measure.
Federal law allows the surgeon general “to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases . . . from one State or possession into any other State or possession.” (This power is now exercised by the CDC director, thanks to executive reorganizations over the years.) The Code of Federal Regulations (CFR) contains similar language, allowing the CDC director to prevent the interstate spread of disease when local efforts fall short.
Thus, the same agency that is downplaying the need for COVID-19 testing also allegedly believes that it’s a grave threat to public health to evict people who don’t pay their rent. The new notice contends:
In the context of a pandemic, eviction moratoria — like quarantine, isolation, and social distancing — can be an effective public health measure utilized to prevent the spread of communicable disease. Eviction moratoria facilitate self-isolation by people who become ill or who are at risk for severe illness from COVID-19 due to an underlying medical condition. They also allow State and local authorities to more easily implement stay-at-home and social distancing directives to mitigate the community spread of COVID-19. Furthermore, housing stability helps protect public health because homelessness increases the likelihood of individuals moving into congregate settings, such as homeless shelters, which then puts individuals at higher risk to COVID-19. The ability of these settings to adhere to best practices, such as social distancing and other infection control measures, decreases as populations increase. Unsheltered homelessness also increases the risk that individuals will experience severe illness from COVID-19.
Now, there’s no question that the executive branch has broad authority to control outbreaks. But that power cannot be so broad that it swallows every limit on the president’s power — which would raise constitutional issues by itself — and uses of this power must at minimum come with a justification that passes the laugh test. A nationwide eviction moratorium to prevent the interstate spread of disease, at a time when the country is generally open for business and the CDC itself (rightly) supports school reopenings, is patently absurd.
Further, the language of the relevant laws and regulations makes it clear that the authority granted is intended for targeted efforts to stop the spread of infection. After the passage I quoted above, the statute says that “the Surgeon General may provide for such 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 other measures, as in his judgment may be necessary.” Similarly, the CFR allows the CDC director to “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.”
As the law professor Ilya Somin has noted, “Esjudem generis, a standard canon of legal interpretation, requires that a list of items in a law should be interpreted as being ‘of the same kind’ as others on list. Here, everything on the list seems to be relatively limited in scope. Thus, the regulation only permits narrowly targeted, localized restrictions.”
As Somin writes, allowing this policy to stand would “set a dangerous precedent undermining federalism, the separation of powers, and property rights.” Pretty much any regulation can be said to have some vague connection to the spread of COVID-19, and some have already suggested that if the CDC can do this, it might be able to postpone the election or ban in-person voting, too.
If Congress wants to limit evictions in a new COVID bill, it can get around to that any time it feels like it. But the executive branch has, and should have, no such authority.