Landlords, housing industry sue CDC to overturn eviction ban

A group of Ohio landlords and the National Association of Home Builders (NAHB), a national trade group for the housing industry, filed a lawsuit Friday to overturn the Centers for Disease Control and Prevention (CDC) eviction ban.

In a lawsuit filed in the U.S. District Court for the Northern District of Ohio, the coalition of landlords and NAHB allege that the CDC, the Department of Health and Human Services, and Department of Justice violated federal law and the Constitution with a national September ban on evictions.

“The CDC’s moratorium is a sweeping expansion of federal power over the rights of property owners nationwide,” said Steve Simpson, a senior attorney at Pacific Legal Foundation, a conservative group representing the landlords and NAHB.

“Fortunately, Congress never gave the CDC that authority, and the Constitution’s separation of powers does not allow an agency to make up the law as it goes along. The courts shouldn’t allow the CDC’s power grab to continue.”

The CDC in September issued an unprecedented ban on evictions through the end of 2020 as a means to prevent tens of millions of people from facing homelessness amid the relentless COVID-19 pandemic. The order has likely prevented thousands of evictions so far and won wide praise from housing and public health advocates.

Even so, legal experts have warned that it would be vulnerable to a court challenge given its reliance on a largely untested provision of federal law. 

The CDC levied the order under a 1944 law that gives federal health authorities broad power to take whatever action they deem necessary to stop the interstate transmission of an infectious disease.

The regulation used to underpin the eviction ban gives the federal government explicit authority to take measures  such as “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected,” to control infectious diseases, “and other measures, as … may be necessary.”

But suit alleges that the CDC violated that law because the regulation does not specifically mention housing provisions or the ability to void commercial contracts like leases.

“The CDC’s eviction moratorium represents a sweeping assumption of power by an administrative agency that it simply does not possess,” the suit alleges.

The Ohio lawsuit is at least the second legal challenge to the CDC’s eviction ban. Richard Lee Brown and a slew of housing trade groups also filed a suit in September against the CDC in District Court for the Northern District of Georgia.

A group of housing advocates and health experts warned in a brief filed in that case that a repeal of eviction ban could force thousands into homelessness and risk increasing the spread of COVID-19.

“Protecting public health during this pandemic requires protecting those most likely to contract, spread, and die from COVID-19. These deleterious health impacts and the spread of COVID-19 are tied to the act of eviction itself and are likely quite preventable if eviction is halted under the CDC’s moratorium,” they argued.