The Centers for Disease Control and Prevention (CDC) announced a four-month ban on evictions for most renters Tuesday, allowing some people who are unable to pay rent to stay in their current housing through the end of the year.
It’s a huge step that could help ward off a major homelessness crisis in America. But it’s also one that Democrats and housing advocates say is avoiding the root problem, which Congress could solve by passing a second round of pandemic-related financial stimulus, and one that could face significant legal challenges, to boot.
The public health agency invoked federal health law to impose the policy, saying “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,” according to the order.
Under the ban, landlords would face criminal penalties for evicting qualifying tenants for nonpayment of rent. According to the policy, property owners are still allowed to evict for other reasons, such as illegal activity or destruction of property. The moratorium replaces a previous eviction ban that expired at the end of July. The CDC did not respond to a request for comment from Vox.
The $2 trillion CARES Act passed in March imposed a 120-day moratorium on evictions for tenants in federally assisted housing or in homes with federally backed mortgages — extending protections to approximately 12.3 million rental housing units, according to the Urban Institute. The bill also gave the vast majority of Americans a one-time stimulus check and enabled an extra $600 per week in enhanced unemployment benefits for those laid off due to the pandemic, money that many families used to help pay their rent or mortgage.
But those eviction protections and enhanced unemployment benefits lapsed at the end of July, and Congress hasn’t yet come to an agreement to take further action on more coronavirus stimulus.
In lieu of a congressional package, some states have taken action to prevent evictions, but as of Tuesday, only 17 states and the District of Columbia have prohibitions still in place. In June, Sen. Elizabeth Warren proposed expanding the previous federal eviction ban from the CARES Act to cover most renters, while extending it until next March. That hasn’t come to fruition.
Treasury Secretary Steve Mnuchin told a House Oversight select committee Tuesday that the new CDC policy would protect about 40 million renters.
Both housing advocates and landlords said the CDC ban, without financial or rental assistance, doesn’t go far enough to protect both renters and rental property owners.
“The very least the federal government ought to do is assure each of us that we won’t lose our homes in the middle of a global pandemic,” National Low Income Housing Coalition CEO and President Diane Yentel told Politico. But Yentel went on to say that a moratorium without accompanying financial relief is a “half-measure that extends a financial cliff for renters to fall off of when the moratorium expires and back rent is owed.”
Landlord advocates expressed similar concerns, explaining that it can be difficult for property owners to pay their mortgages and taxes without any rent coming in. “Not only does an eviction moratorium not address renters’ real financial needs, a protracted eviction moratorium does nothing to address the financial pressures and obligations of rental property owners,” said Doug Bibby, the president of the National Multifamily Housing Council, in a statement about the moratorium.
House Democrats have proposed up to $100 billion in rental assistance in the next round of pandemic stimulus.
The Trump administration’s rule can help protect renters until Congress agrees to fund that — or fund some smaller amount. But the rule’s language also opens the door for landlords to add fees and extra charges for nonpayment of rent, and there is a limit on who can apply for protection from eviction. And that’s assuming the rule doesn’t immediately get overturned in court.
Who is — and isn’t — eligible, briefly explained
Covid-19 and the resulting economic fallout have put millions of people at risk of becoming homeless.
According to the financial journal Stout, nearly two in five renters are at risk of being served eviction papers in the coming months thanks to the coronavirus pandemic and resulting economic collapse. A CNBC report estimated there could be as many as 40 million evictions caused by the pandemic.
But the moratorium the CDC put in place isn’t a universal ban on evictions. In order to qualify, single renters making less than $99,000 a year or couples making less than $198,000 are eligible. That encompasses a fairly large number of Americans. However, they must prove that they made an effort to pay their rent and have exhausted other federal rental assistance programs. Forms will be available on the CDC website once the order is published in the Federal Register.
According to Politico, renters must prove that eviction will make them homeless or that they’d have to double up with someone else in close quarters, which would present a pandemic health risk.
While most renters won’t be at risk for eviction until the end of the year thanks to the ban, the policy does not waive rental payments due during that time period. So any nonpayment would accrue until the renter either pays or the ban expires, essentially kicking a potential emergency crisis down the road for just a few months.
The eviction moratorium is likely to run into legal trouble
No federal law explicitly provides for an eviction moratorium. Instead, the CDC relied on a broadly worded public health law that permits the CDC’s director 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.” Thus, the CDC may draft rules intended to prevent diseases from spreading across state borders.
In theory, an eviction moratorium would make it somewhat less likely that Covid-19 would spread across state lines. If a person who is infected with the virus is evicted in New York, for example, they might travel to New Jersey to stay on a friend’s couch and wind up infecting that friend in the process.
But, as American University law professor Lindsay Wiley noted on Twitter, the CDC’s eviction moratorium is only lawful under a particular aggressive reading of the agency’s statutory authority. And there is good reason to believe that the moratorium will not survive a court challenge.
I’ve been speculating since Feb. abt whether CDC might push the envelope on what Section 361 of the Public Health Service Act authorizes. I didn’t expect it to come in the form of a federal eviction moratorium. Wow. I definitely expect this to be challenged in court.
— Lindsay Wiley (@ProfLWiley) September 1, 2020
Briefly, some federal laws permit federal agencies to issue binding rules known as “regulations.” But the Supreme Court’s conservative majority recently signaled that it wants to roll back much of Congress’s ability to delegate regulatory power to agencies in this way.
Most significantly, in Gundy v. United States (2019), Justice Neil Gorsuch called for fairly strict new limits on Congress’s ability to authorize federal agencies to regulate. A law authorizing such regulation, Gorsuch wrote, should be struck down unless it is “‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.”
Gorsuch’s opinion in Gundy was technically a dissent, but all five members of the Court’s Republican majority have since indicated that they agree with Gorsuch.
And admittedly, Gorsuch’s opinion is vague — just how “definite and precise” does a federal law have to be in order to survive contact with the courts? But the public health law the CDC relied upon in creating the eviction moratorium is also quite vague. Again, that law permits the CDC director to make regulations that “in his judgment are necessary” to prevent the spread of communicable diseases across state or international borders.
It is fairly likely, in other words, that a lower court could apply the approach Gorsuch laid out in Gundy — and if they did, they would likely strike down the eviction moratorium. The point of Gorsuch’s Gundy opinion is that Congress should not be able to delegate too much discretionary power to an agency — Congress must, instead, provide agencies with clear instructions on how to regulate. But Congress did not provide especially clear instructions when it allowed the CDC to make public health regulations.
To be clear, it is far from certain that the Supreme Court would strike down the moratorium. There are good reasons why public health agencies should have broad regulatory power. Public health emergencies are unpredictable, and Congress would have a tough time drafting a statute that anticipates every step a public health agency might need to take in order to control a pandemic.
Moreover, while Chief Justice John Roberts has largely been sympathetic to Gorsuch’s approach to agency regulation, he’s also urged judges to defer to public health officials who are struggling to control the pandemic. Roberts joined Gorsuch’s opinion in Gundy, but the chief justice may have second thoughts if Gorsuch’s approach could exacerbate a pandemic.
In any event, the fate of the eviction moratorium is uncertain once a landlord decides to challenge it in court. And even if Roberts eventually joined the Supreme Court’s liberal minority in upholding the moratorium, that moratorium could potentially be put on hold by a conservative lower-court judge while this case is making its way to the justices.
The threat of eviction, in other words, is likely to hang over many renters until Congress gets its act together and provides them with clear statutory relief.
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