Tag Archives: CDC eviction moratorium

US Court of Appeals Holds CDC Eviction Moratorium Likely Invalid

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In September 2020 the Center for Disease Control (CDC) issued a nation-wide eviction moratorium,  citing generic rulemaking authority under the Public Health Service Act. The same month, landlords in Tennessee filed a lawsuit in federal court arguing that the CDC eviction moratorium exceeded statutory authority.

The Public Health Service Act statute authorizes the CDC Director to provide for “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.” The CDC based its authority to supersede state law and halt evictions nation-wide on the “other measures” catchall.

Later, Congress extended the CDC eviction moratorium from December 31 to January 31. On January 29, the CDC extended the eviction moratorium through March 31, relying again on the generic catchall as authority.

The federal district court ruled that the CDC had exceeded its statutory authority. The government appealed and moved for a stay on the district court’s order.[1] The Sixth Circuit Court of Appeals concluded that the government was unlikely to prevail on the merits, and denied the motion.[2]

The Court reasoned that as the “other measures” catchall comes at the end of a list of specific items, the “other measures” catchall must be construed to be of the same nature as the specified items like “inspection, fumigation, disinfection, sanitation, pest extermination” and so on. “Plainly, government intrusion on property to sanitize and dispose of infected matter is different in nature from a moratorium on evictions.”

The Court noted that regulation of the landlord-tenant relationship has historically always been the province of the states, and the Court would not read the statute as granting the CDC power to insert itself in a traditional area of state law without “some clear, unequivocal textual evidence of Congress’s intent to do so.” The Court cited an “ordinary rule of statutory construction that if Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute.”

The government argued that since other provisions of the Public Health Service Act allow the CDC to enforce quarantines, the “other measures” catchall must be read broadly to include things like quarantine. The Court conceded that this argument has “cosmetic appeal” but concluded that it does not hold up to scrutiny. The Court reasoned that the provision the government relied upon dealt with limited power to restrict liberty by imposing quarantines. The “other measures” language is found in provisions dealing with property interest, and an eviction moratorium is radically different from the types of property interests listed there.

The government also argued that when Congress legislatively extended the CDC eviction moratorium it acknowledged that the statute authorized the moratorium. The Court noted that nothing in the congressional act expressly approved the CDC’s interpretation, and “mere congressional acquiescence in the CDC’s assertion” of statutory authority “does not make it so, especially given that the plain text indicates otherwise.”

The Court found the government unlikely to prevail on the merits, and accordingly denied the motion for a stay on the district court’s order.

[1] Tiger Lily, LLC v. US Dept. of Housing and Urban Development (6th Cir. No. 21-5256).

[2] See https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0074p-06.pdf

Texas Federal Judge Hold CDC Moratorium Unconstitutional

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A federal judge in Texas has held the Centers for Disease Control eviction moratorium unconstitutional.[1]

In September 2020 the CDC issued a nation-wide residential eviction moratorium in response to the COVID-19 pandemic. The CDC eviction moratorium stopped evictions for non-payment. In Texas several landlords filed suit challenging the legal authority of the federal government to impose an eviction moratorium upon states.

The judge ruled that while states have the power to regulate residential evictions, the CDC moratorium exceeded federal authority to regulate interstate commerce. States have broad power to enact laws for the general public good—called ‘police power’—but the police power of the federal government is limited under the US Constitution.

The federal government has no general police power. The federal government must find authority either under an area reserved to it under the Constitution, such as the power to regulate interstate commerce.

The Court noted that the “federal government cannot say it has ever before invoked its power over interstate commerce to impose a residential eviction moratorium” and that the federal government had not done so during the Spanish Flu pandemic or the Great Depression. “The federal government has not claimed such a power at any point during our Nation’s history until last year.”

The government claimed broad constitutional authority. The federal government argued it had authority to issue suspend evictions even in the absence of a pandemic for any reason, including an agency’s views on “fairness.”

Note that the impact of this ruling is limited as it is the holding of a local federal district court judge, and even within its jurisdictional boundaries, the Court did not issue an injunction. Any landlord should consult with an attorney before acting, particularly as there are potential criminal penalties for violating the CDC moratorium.

An appeal is highly anticipated.

[1] Terkel et al. v. Center for Disease Control and Prevention, No. 6:20 -cv- 00564 (E.D. Texas February 25, 2021).

New CDC Eviction Moratorium

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The Center for Disease Control (CDC) issued an eviction moratorium covering essentially all residential properties. To qualify for protection the tenant must provide the landlord with a declaration under penalty of perjury that the tenant

  1. has used best efforts to obtain all available government assistance for rent or housing;
  2. expect to earn for 2020 no more than $99,000 for individuals or $198,000 for joint tax filers;
  3. is unable to pay the full rent due to substantial loss of income, loss of work hours, wages, lay-off, or extraordinary out-of-pocket medical expenses;
  4. is making best efforts to pay as close to full payment as circumstances permit;
  5. eviction would likely make the tenant homeless or forced the tenant to move in close quarters in a shared-living arrangement;

The CDC argues in its moratorium that preventing evictions will help slow the spread of COVID-19. It cites this argument as giving the CDC authority to issue the eviction moratorium.

The CDC moratorium does not apply to evictions based on a tenant

  1. engaging in criminal activity;
  2. threatening health or safety;
  3. damaging or posing an immediate and significant threat to property;
  4. violating building or health codes or similar laws;
  5. violating contractual obligations other than non-payment of rent or other charges

The CDC moratorium is set to expire December 31, 2020.