The economic fallout of the COVID-19 pandemic has radiated throughout the global economy. The damage extends beyond the ex-ante pessimism of market speculators on Wall Street. Many measures implemented to prevent the spread of the virus has resulted in compounding the economic trauma. Some economically detrimental policies that have little utility in containing the virus are being touted as a crucial initiative for maintaining public health. It would be imprudent for someone without a medical background to argue against the veracity of such claims. However, many of these tradeoffs are merely band-aid measures that will have severe downstream consequences. One prominent example of this was the eviction moratorium.
The debate over this policy position has recently been featured in the headlines as U.S. District Judge Dabney Friedrich motions to end this law. She forms a compelling legal argument for how the continuation of this policy would constitute an overextension of the CDC’s authority. Detailed in her order is the legislative history of the eviction moratorium spurred by the economic fallout of COVID-19.
- March 13th, 2020- Former President Donald Trump declares a national emergency due to COVID-19.
- Two weeks later the CARES Act is signed into law. Part of this relief bill was a 120-day restriction on evictions for rental properties that “participate in federal assistance programs or were subject to federally-back loans”. This feature of the act was set to expire in July.
- August 8th, 2020- the then-president “… issued an executive order…” instructing the director of the CDC and Secretary of HHS to evaluate if continuing the ban on evictions due to nonpayment was a reasonable measure to stifle the spread of the virus.
- September 4th, 2020- The CDC issues an order (42 C.F.R. § 70.2. 85 Fed. Reg. 55,292) temporary hold on evictions to prevent the spread of COVID-19. The agency invoked a section of the Public Health and Service Act § 361. Reasoning that is measure is necessary for enabling individuals to self-isolate and social distance.
361. (a) The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary 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. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary. (b) Regulations prescribed under this section shall not provide for the apprehension, detention, or conditional release of individuals except to prevent the introduction, transmission, or spread of such communicable diseases as may be specified from time to time in Executive orders of the President upon the recommendation of the Secretary, in consultation with the Surgeon General.
( Health and Service Act, Sect 361, P.377-378).
- December 31, 2020- Originally set to expire, however, the CDC order was extended as part of the Consolidated Appropriations Act passed by congress. This extension was slated to expire on March 31st,2021.
- March 31st,2021- CDC extended the federal moratorium on evictions to June 30th,2021 to prevent further spread of the virus. This new extension was predicated upon “…updated its findings to account for new evidence of how conditions had worsened since the original order was issued, as well as “[p]reliminary modeling projections and observational data” from states that lifted eviction moratoria “indicat[ing] that evictions substantially contribute to COVID-19 transmission.” Id. at 8022…”
Friedrich expounds upon the legal facts that indicate that the proposed extension through June is a jurisdictional overreach on the part of the CDC. One of the biggest questions in assessing the veracity of the agency’s capacity to impose restrictions on evictions is whether this power was conferred to the CDC by congress. Since the “… CDC Order was intended to have the force of law…” (p.9) meaning the two-prong test established in Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 842 (1984) must be applied. What is also known as the test for Chevron Deference or administrative deference. Depending on the action taken by the agency “…judicial deference is appropriate where the agency’s answer was not unreasonable, so long as the Congress had not spoken directly to the precise issue at question…”. Friedrich points out that the court needs to review if the congress has discussed the matter, if so then no further consideration is required (p.9-10). If the action and interpretation of a government bureau or agency do not fulfill the first test, the court needs to ascertain if the agency interpretation is valid and if so “defer to it” (p.10).
The imposition of the moratorium on evictions fails the criterion of the Chevron test through stepping outside of the boundary congressionally approved actions. Pursuant under section 264 of the Public Health Service Act the CDC does have the authority to implement measures to prevent the interstate and international spread of the virus (p.10). The enumerated list of possible measures that are allotted to the agency is not boundless. Per the precise language in section 264, the authority for agency action is centered upon “specific targets” that operate as a vehicle for transmitting the virus (p.11). Friedrich notes that placing nationwide bans on evictions does not meet this first test of congressionally allocated authority. She also conveys that including eviction bans as being a valid use of the CDC’s authority would be a distortion of the language present in Section 264 (p.12). Extending the CDC the power to intervene in the transactions between landlords and tenants presents a constitutional issue of overreach on the part of the agency (p.14). Per Friedrich’s interpretation of the law, the CDC doing so exceeded the limits of the Commerce Clause and going above and beyond the powers congress intended for the agency to possess. (p.14).
The latest purposed extension coming directly from the CDC has not been blessed by Congress. Placing the veracity of this order in question. Congressional approval has been granted to extend the eviction moratoriums twice over the past year. This approval manifesting in the CARES Act and the Consolidated Appropriations Act (p.15). Since congress withheld any support for extending the eviction freeze beyond January 31st, 2021; any action taken by the CDC can only rest on the content “…Public Health Service Act alone…”(p.18). As previously demonstrated the eviction measures are not defendable within the context of the law. Making any further extension from February 1st an exertion of extralegal authority without the back of congress or any corresponding statutes.