Trump eviction ban tests limits of CDC authority

The Trump administration’s new eviction ban faces a slew of legal and political challenges that could undercut an ambitious and unorthodox attempt to save tens of millions Americans from homelessness.

The Centers for Disease Control and Prevention (CDC) on Tuesday issued an order banning landlords from evicting tenants that can no longer afford to pay rent due to a pandemic-related expense or hardship through the end of 2020. That order, along with previously issued federal protections, could ensure all of the nation’s 40 million rental households keep their residences during the pandemic.

But the eviction ban is a groundbreaking test of the CDC’s power that experts say will undoubtedly prompt several legal challenges. And advocates for both tenants and the real estate industry fear that the expiration of the protections at the end of the year could create a dangerous housing crisis at the start of 2021.

“This is definitely unprecedented,” said Lindsay Wiley, a law professor and director of the health law and policy program at American University.

“The CDC has really broad authority on its face, but it’s never pushed the boundaries of that authority,” she said.

The coronavirus has forced millions of Americans into unemployment and on the precipice of homelessness. More than 10 million people in the U.S. have not yet found work after losing their jobs when the outbreak took hold, a sign that the pandemic has taken the heaviest toll on those who can least afford it.

The $2.2 trillion Coronavirus Aid, Relief and Economic Security Act signed by Trump in late March imposed a national ban on evictions and foreclosures through July. But the subsequent stalemate over another aid package threatened roughly 20 million households with losing their homes, according to experts.

“The United States is facing the most severe housing eviction crisis in its history and this moratorium is a critical measure to prevent those evictions from happening,” said Emily Benfer, a law professor at Wake Forest University.

The CDC’s order seeks to prevent that crisis by prohibiting landlords from kicking out tenants solely because they can no longer afford to pay rent. The ban covers any renter who expects to make less than $99,000 this year who seeks federal housing aid, would fall into homelessness if evicted, and is attempting to pay rent. The same protections apply to joint-filing couples that expect to make less than $198,000.

Benfer said that without the ban, “we would have widespread homelessness, we would have increased contraction of COVID-19, we would have all of the harms that come with eviction.”

While the ban could be a crucial lifeline for struggling renters, experts say its legal basis rests on a broad interpretation of a 1944 law. The regulation cited by the CDC gives it power to take whatever action it deems necessary to stop the interstate transmission of an infectious disease.

The logic behind the order is that if a renter is evicted and forced to move in with someone beyond state lines, it could further spread COVID-19.

“This does not appear to have been hastily put together,” Wiley said. “It’s clearly written by someone who knows the ins and outs of CDC authority and is interested in pushing the boundaries of it, but in a way that is as defensible as possible in court.”

But Wiley said the regulation in question focused mainly on efforts such as fumigation and sanitation practices, making the ban vulnerable to a legal challenge over whether the CDC exercised its power beyond the intent of Congress.

“I absolutely do expect to see legal challenges,” Wiley said.

The eviction ban also sets the stage for a painful start to 2021.

Tenants will be required to pay all of the rent due per the terms of their lease in January, a daunting and likely impossible task for many households who would benefit from the order. Landlords, meanwhile, could be hit with a steep drop in income during the no-eviction period and be forced to sell their properties or take on massive debt to weather the storm.

Several Democratic lawmakers praised the Trump administration for the ban, but warned it could only make the crisis worse without rental assistance aid for tenants and landlords. The Democratic-controlled House passed a bill in June that would provide $100 billion in rental aid meant to cover the costs of a 12-month eviction and foreclosure ban. The measure has not been taken up in the GOP-controlled Senate.

“Without emergency rental assistance renters – and their landlords – will fall further and further behind with each passing month,” said Sen. Sherrod Brown (Ohio) the ranking Democrat on the Senate Banking Committee, in a Monday statement.

National Association of Realtors President Vince Malta, a San Francisco real estate broker, also warned that the eviction ban “as-written will bring chaos to our nation’s critical rental housing sector and put countless property owners out of business.”

Avoiding a crisis in the coming months will likely rest on how much progress the Trump administration and congressional Democrats can make toward another stimulus bill. Treasury Secretary Steven Mnuchin voiced support for boosting rental assistance during testimony before a House committee on Tuesday, and Democrats have made eviction and foreclosure protections a top priority in negotiations.

“Whether it’s three months from now, or six months from now, or a year from now, having millions of people be evicted because they can’t pay a year’s worth of rent is not a solution,” said David Dworkin, president and CEO of the National Housing Conference, a group that advocates for expanding affordable housing.

“They need to come up with a plan to work this out.”