Judge’s ruling on CDC eviction moratorium threatens public health now and in the future

A federal district court judge in Washington, D.C. recently ruled that the Centers for Disease Control and Prevention’s September 2020 order on evictions was unconstitutional. Responding to a Justice Department motion, the court temporarily stayed its ruling until next week and further briefing by the parties to the case. Congress has allocated nearly $50 billion in rental assistance funding to keep renters in their homes and help landlords hurt by the pandemic, but the effectiveness of those funds will be limited if renters are evicted before the money arrives. This decision and many others during the pandemic have demonstrated the extent to which the court system unjustly favors landlords.   

The main issue in the case is whether Congress gave the CDC the power to enact an eviction moratorium in the Public Health Services Act of 1944. Congress passes laws and the federal agencies implement them. Agencies cannot act outside of the power given to them by Congress. The Public Health Services Act gives the CDC wide authority to take actions it finds reasonably necessary to prevent the interstate spread of communicable diseases. There is clear research demonstrating that evictions and the subsequent overcrowding they cause have led to hundreds of thousands more cases of COVID-19 and tens of thousands more deaths. In the midst of the pandemic, eviction moratoriums have saved lives and prevented disease. 

An act of a federal agency is viewed as constitutional if Congress ratifies it after the fact. In December 2020, Congress extended the CDC eviction order through legislation. It is difficult to imagine a clearer situation of ratification than Congress’ extending an existing order and making no changes to it.  However, the court last week and a few other judges have ignored the context and meaning of Congress’ action, bending over backward to argue incorrectly that Congress did not ratify the CDC eviction moratorium. 

The ramifications of declaring the CDC’s eviction moratorium unconstitutional go far beyond housing court. Limiting the authority of the CDC to impose an eviction moratorium it finds necessary to curb COVID-19 transmission would also significantly curtail the ability of the CDC to impose other unanticipated measures in response to a future pandemic, no matter what those might be and no matter the severity of the danger some future disease might pose. 

The pandemic and the eviction court cases have demonstrated just how few rights tenants have in most places in the United States. The eviction system is hard-wired to serve the perceived interests of property owners and landlords, at the expense of basic protections for tenants. COVID-19 has laid bare the causes and consequences of that system.

Before the pandemic, we knew that eviction led to family instability, worse school outcomes and lost productivity, but during the pandemic evictions have also threatened all of our health. Evictions also play out along lines of race and gender with Black women at the highest risk of eviction. These unjust outcomes result from a court system where only 3 percent of tenants have an attorney but more than 80 percent of landlords do and in places where tenants have few substantive or procedural rights to protect them.

Eviction is the most rapid civil lawsuit with many people getting evicted through a default process where their case lasts mere seconds. Notice of the hearing is often only a few days. Tenants have few substantive rights in most states. They can be evicted for owing a few dollars or for no reason at all, and often claims of landlord harassment, discrimination, security deposit theft and other issues go completely ignored. 

During the pandemic evictions have continued even with the CDC moratorium.  Tenants do not know that they need to sign a declaration to be protected. Judges have allowed “no cause” evictions arguing that those are not for nonpayment of rent.  Judges have also allowed landlords to challenge the contents of the declarations and have evicted people because the judge thought the tenant could have paid more rent or moved in with a family member. All of these evictions violate the substance and intent of the CDC order.   

My argument is not that landlords are bad and that tenants are good. In fact, we partly owe our housing stability and health to the many good landlords that have gone out of their way to work with their tenants and to obey the law. However, the law and the courts are tilted deeply in favor of landlords.  Too often, the law and the courts allow and encourage the worst behavior of the worst landlords. 

The Biden administration needs to defend the CDC’s eviction moratorium and keep people housed long enough for rent relief to arrive, but we also need to address the deeper problems with landlord tenant law across the country.  Congress needs to allocate additional funding for representing tenants in eviction court and must provide basic and national protections for renters. In the meantime, lives are at stake.

Shamus Roller is the executive director of the National Housing Law Project.