The Centers for Disease Control and Prevention (“CDC”) issued an order on Tuesday, August 3, 2021, that – after a short interruption – seeks to extend its prior eviction moratoriums, originally imposed in September 2020. The newest moratorium will expire on October 3, 2021, is intended to bridge the gap between public health concerns and judicial opinions questioning whether the federal government – including the CDC – has the legal authority to impose an eviction moratorium on properties with no federal assistance. The new moratorium is more focused in that it applies only to jurisdictions with “substantial” or “high” levels of COVID-19 outbreaks. Given the widespread distribution of the Delta variant of the virus, this essentially covers the entire country.
The legal rationale for the initial September 2020 eviction moratorium was the CDC’s authority to take action to interdict the interstate transmission of infectious materials. The CDC took the position that tenant evictions in the middle of a pandemic would accelerate the spread of COVID-19, as tenants moved across state lines to seek housing in shelters or with family members or friends. During a time when social distancing was still the primary public health response to the pandemic, the CDC moratorium recognized a basic reality – if people stayed home, the spread of the virus would be reduced. Unfortunately, the CDC interpretation of the law giving them authority in this area was tortured at best. The law authorizes the CDC to impose measures such as “inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals.” It does not give the authority to freeze the rental housing market for months in virtually the entire country.
In general, courts have taken the position that the CDC overreached. Some courts stated that the CDC’s authority to restrict the transmission of infectious materials was too limited to support a nationwide moratorium on tenant evictions. Other courts went farther, arguing that the federal government had no constitutional authority to interrupt issues of landlord-tenant law that are universally controlled by state laws. Recently, the Supreme Court declined to take up the case, arguing primarily that since the Moratorium would expire at the end of July and billions of dollars of Emergency Rental Assistance Program (ERAP) funding would be available to prevent evictions, participation of the Court was not necessary. (It should be noted that nationally, only a fraction of the ERAP funds – less than 7 percent – have been used).
This new CDC order is basically making the argument for the moratorium by showing the threat posed by the Delta variant and how an eviction moratorium will slow the spread of the variant.
The CDC order includes a link of areas with widespread outbreaks, but it is an absolute certainty that this order will cause great confusion among landlords and will almost certainly be challenged in the courts. Landlords should obtain a copy of the order and try to determine if they are impacted by the order based on location – approximately 80% of counties will come under the order.