An unlawful effort to end evictions

No sensible person could disagree that the government must take action to prevent tenants from being thrown out on the streets in this pandemic since they lost their jobs and cannot afford rents. When Congress passed the Cares Act in the spring, it handled the problem on a short term basis the right way by sending subsidies to enable tenants to stay current and landlords to pay their bills. But those funds have expired as Republicans have refused to negotiate with the House, which passed the Heroes Act that would make federal funds available to assist tenants and others.

The White House tried to solve the issue, but it did nothing concrete. The Centers for Disease Control and Prevention issued a moratorium to halt or at least slow down the evictions. That is the good news on this issue. The bad news is that it is almost certainly unauthorized and, to the extent that it gives hope to those in need, it delays the time for the government to do what is really needed and will not be struck down in court. While I am not inclined to side with landlords generally, the rule of law should not be set aside in the interest of protecting the less fortunate amidst this crisis.

The crux of the recent order is that landlords cannot evict individuals with incomes below $99,000, and joint filers with incomes below $198,000, in states or American territories where there are “documented cases” of the coronavirus. The order threatens a criminal penalty of a fine for $100,000 and one year in prison or both. But the only arguably relevant statute that is cited has a maximum fine for $1,000 and one year in prison or both.

There is also a serious question as to whether the order was issued by the person with the proper authority to do so. The regulation which was cited for the basis of the order states that the director of the Center for Disease Control and Prevention is the right person, however, this order was signed instead by Nina Witkofsky, who is acting chief of staff with the agency.

This administration has been called out for allowing acting officials to take unauthorized measures, but this is the first time that a federal order of this magnitude has the imprimatur of an acting chief of staff. The Constitution mandates that officials who have broad powers, such as the director of an agency, have to be nominated by the president and then confirmed by the Senate, and such agency heads do not include an acting chief of staff.

Moreover, the statute that remains the basis for the order is available only “to prevent the introduction, transmission, and spread for communicable diseases from foreign countries into the states” or among states. There is a regulation issued under this provision, which explains what is expected to be done under it. So the authorized measures in the provision include “inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.”

Those actions are associated with the understanding of what the Centers for Disease Control and Prevention can do. It is a health agency and not a housing agency. No one who is at all familiar with the government would list as one of the tasks the prevention of evictions due to loss of incomes. That is the work of Congress and not the Centers for Disease Control and Prevention or any other agency. So the legislative branch must do what it did for the spring and enact some more emergency funds so tenants can pay their rents and landlords can pay their mortgages and their taxes.

This is simply another case of a president who cannot make any deal with Congress, and insists on doing it all by himself with no regard for the law. Evictions must not occur now, but not in this way by the government.

Alan Morrison teaches constitutional law at George Washington University.