The Centers for Disease Control and Prevention has just announced that it is extending its nationwide eviction moratorium through June. The agency is taking this action despite considerable evidence that the moratorium will do little to reduce the spread of COVID-19 and that it violates the Constitution and exceeds the CDC’s statutory authority.
The CDC has statutory and regulatory authority “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” Federal regulations also “provide for the apprehension, detention, examination, or conditional release of individuals . . . reasonably believed to be infected with a communicable disease.” The original CDC eviction moratorium from September made it a crime — punishable by up to one year of imprisonment and a fine of up to $250,000 — to evict certain tenants for nonpayment of rent.
It is doubtful the moratorium will limit disease spread. The CDC order claims eviction will interfere with the ability of people sick with COVID-19 or at risk of severe COVID-19 illness to isolate. Evicted renters would presumably move into shared housing or other congregate settings, such as shelters, where it would be difficult to observe social distancing or other infection-control measures. Yet potential evictees could have been living in close settings already. Census Bureau data show that about a third of renters would move in with family or friends upon eviction — people they were likely already in contact with. And those who move into other congregate housing would be entering controlled settings that have CDC guidance on how to limit disease transmission. Unless evictees had been meticulously sheltering-in-place, avoiding contact with anyone outside or inside their home, moving would not necessarily increase their contact with others or their likelihood of spreading or acquiring the disease.
Moratorium supporters cite a non-peer-reviewed paper that purportedly shows increases in COVID-19 infections and deaths in that states that have lifted their statewide eviction moratoriums compared to states that have not. But the findings are implausible. The cited infections and deaths started rising just a few weeks following the policy change. Evictions take time, often many weeks to months. Resulting infections and deaths, therefore, could not have risen so quickly after the moratoriums were lifted. Moreover, the paper makes the incongruous claim that increased mortality risk became statistically significant at seven weeks — three weeks before the incidence of infections rose.
Plaintiffs around the country have challenged the CDC moratorium, claiming that it violates the Constitution and the statute that the CDC relied on to issue the order. Last month a federal district court in Texas declared the moratorium unconstitutional because it exceeded the limited powers granted in the Constitution to the federal government. The court held that property rights in buildings are “inherently local,” and that regulation of local evictions does not have a substantial effect on interstate commerce. The CDC order limits all evictions, not just those that affect interstate commerce. Yet, only 15 percent of the millions of Americans who relocate each year move to new states. While some courts have held that the CDC had the statutory authority to order a moratorium, a federal district court in Ohio recently found that the moratorium exceeded the CDC’s statutory authority.
Neither court imposed a nationwide injunction ordering the CDC to stop enforcing the moratorium beyond the plaintiffs in the cases. Nevertheless, as the Texas court concluded, “Although the COVID-19 pandemic persists, so does the Constitution.” It offered that if the government fails to “respect the declaratory judgment” — as it apparently did by extending the moratorium — the Texas plaintiffs could return to seek an injunction.
Extending the CDC eviction moratorium should be seen for what it is: a politically popular action that stretches constitutional limits, statutory language, and common sense. It will do little to protect the public from COVID-19 but will cripple the financial viability of small landlords around the country who have been unable to collect rents for nearly a year but remain liable for their own mortgages and bills. Ultimately, this ill-considered measure will drive property owners out of business, reducing the supply of housing and making life more difficult and dangerous for all renters.