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Law & the Courts

The CDC’s Incredibly Sloppy Eviction Order

Centers for Disease Control and Prevention headquarters in Atlanta, Ga. (Tami Chappell/Reuters)

From a reading of the eviction moratorium, it seems clear that the CDC wanted to issue it and so backfilled scientific research to justify it.

According to the provision in the Code of Federal Regulations under which the CDC issued the order, the director has to determine that “measures taken by health authorities of any State or possession (including political subdivisions thereof) are insufficient to prevent the spread of any of the communicable diseases from such State or possession to any other State or possession.”

So the CDC goes about this task by arguing:

Evicted renters must move, which leads to multiple outcomes that increase the risk of COVID-19 spread. Specifically, many evicted renters move into close quarters in shared housing or other congregate settings. These moves may require crossing state borders. According to the 2017 Census Bureau American Housing Survey, 32% of renters reported that they would move in with friends or family members upon eviction, which would introduce new household members and potentially increase household crowding. Studies show that COVID-19 transmission occurs readily within households.

The CDC is comparing the world with the eviction moratorium to a world where nobody leaves their home for any reason other than eviction. It is true that compared to that world, allowing evictions would increase COVID risk. But as it currently stands, people visit their relatives. COVID-19 does not know whether you are crowding into your relatives’ house to visit them or to move in with them. People who could be evicted are already doing any number of other things that put them in contact with other people, so it’s not clear that their risk of COVID infection would change very much at all. The CDC is still using the same lockdown logic it used before the availability of vaccines. COVID-19 transmission does not “[occur] readily within households” if the people in the households are vaccinated.

The specific evidence the CDC marshals is lackluster. First, they misread basic facts. About the original eviction moratorium that applied only to federally financed rental units, they write, “Researchers estimated that this temporary federal moratorium provided relief to over one-quarter a material portion of the nation’s roughly 43 million renters [sic].” Assuming that they meant to say “one-quarter of the nation’s renters,” they’re still wrong. The Urban Institute blog post they cite for that claim says, “Eviction moratoria covering federally financed properties will apply to roughly 12.3 million (28 percent) of the 43.8 million US rental units.” So, first, it’s rental units, not renters. And second, it doesn’t say any relief was provided to those units, it merely says that the moratorium applies to them. It’s preposterous to say that one-quarter of U.S. renters would have been evicted in the absence of the moratorium, but that’s what the CDC’s mangled prose suggests.

This study referenced in the CDC’s order is a real stretch:

Compared to a scenario where no evictions occurred, the models also predicted a 4%-40% [read: We don’t have a clue] increased risk of infection, even for those who did not share housing, as a result of increased overall transmission. The authors estimated that anywhere from 1,000 to 100,000 [read: Again, we don’t have a clue] excess cases per million population could be attributable to evictions depending on the eviction and infection rates.

Another study cited in the order found that states that lifted their eviction moratoria had higher incidence of COVID-19 than states that did not. How much higher? They found that it was 1.6 times higher, 10 weeks after the lifting. But the confidence interval from the study extends from 1.0 to 2.3. That means that it’s equally likely that states that lifted eviction moratoria had more than double the incidence of COVID-19 relative to states that didn’t as it is that lifting the moratoria had no effect at all. It’s basically statistics jargon for “We don’t know,” but it gave enough of a result to justify the action the CDC wanted to take, so they used it.

The order also admits that the CDC is using “modeling studies and observational data from the pre-vaccine phase of the COVID-19 pandemic” to justify an order given now, when around 60 percent of Americans are vaccinated. So we have good reason to believe that those estimates, which were underwhelming to begin with, are actually huge overestimates, since many more Americans have immunity now as compared to when the studies were conducted.

They can get away with this sloppy work because it is an emergency action. Ordinarily, federal regulations are subject to the Administrative Procedure Act, which entails a public notice-and-comment period during which these issues are argued over and have a chance to be straightened out. But since it’s an emergency action, there is no public input, and the normal recourses within the administrative state aren’t available.

The CDC uses this weak logic, poor evidence, and sloppy writing to justify a policy that carries criminal penalties up to a $100,000 fine and one year in jail for individuals who violate it. Criminal proceedings would be initiated by the U.S. Department of Justice. “Well, nobody is actually going to be prosecuted . . . ,” you might be thinking. Okay, then why give them the power?

This should not need to be said, but apparently it does: The Centers for Disease Control and Prevention should not be able to deputize the U.S. Department of Justice to imprison people who violate its weakly reasoned orders on housing policy put in place at the urging of a president who said it was unconstitutional to do so but who then changed his mind under pressure from a few members of his party’s congressional delegation who were pulling a publicity stunt on the steps of the Capitol.

The courts should strike down this illegal order, but that isn’t enough. Congress needs to change the law to ensure that the CDC is unable to issue an order carrying criminal penalties that is such a shoddy piece of work ever again. In this order, the CDC is basically saying that it has the power to limit anything that you do that could potentially involve your crossing state lines and increasing your risk of catching a communicable disease relative to sitting in your house by yourself. That is not an acceptable remit of policy for a disease-control agency, run by unelected officials, in a free society.

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