The Biden government today passed a resolution extending the Centers for Disease Control’s nationwide moratorium on eviction until June 30th. Biden’s earlier revival of a resolution originally passed under the Trump administration expires on March 31.
With the new regulation, only minor significant changes are made to the old one, with the exception of the three-month extension. These changes will have little, if any, impact on ongoing litigation over the legality of the moratorium.
This fight should now last at least three months. So far, three federal district courts have ruled against the order, and two have upheld it. I’ve analyzed these decisions here, here, and here. These cases are now under review by appellate courts and other lawsuits against the order are also continuing.
In my view, both the original Trump Order and Biden’s revival and expansion are illegal as they go beyond what Congress has authorized the CDC to do. If the statute went that far, it would be an unconstitutional delegation of legislative powers that would effectively give the CDC the power to suppress virtually any activity of any kind.
While the newest version of the Order contains few significant changes, it contains an extensive new section in defense of the moratorium on public health grounds. It is possible that this was included to bolster the government’s position in the ongoing litigation over the legality of the moratorium.
I could be wrong. But at least at this point I am skeptical that the justifications in the new order are likely to lead any judge to uphold them who would otherwise be inclined to strike them down. The CDC’s main argument is that eviction increases movement, which in turn should increase the spread of the disease:
Although the data are limited, the available evidence suggests that evictions lead to the interstate spread of COVID19 in two ways. First, an eviction can result in displaced members of a household moving across national borders. Of the 35 million Americans who move each year, 15% move to a new state. Second, even if a particular eviction single-handedly would not always lead to an interstate eviction Displacement, the mass evictions that would occur without this order would be inevitable Increase the interstate spread of COVID-19. T.His Order cannot temper the interstate effectively Transmission of COVID-19 without coverage of domestic evictions as the extent of SARS– –CoV-2 resulting from these evictions can lead to SARS-CoV-2 Transmission across national borders. In addition, intraState spread facilitates interstate spread for communicable diseases Spread, given the nature of the infectious disease. Overall the crowd-scaled evictions that will likely to occur in the absence of this order will inevitably increase inters intertate spread of COVID-19.
As I have pointed out earlier (and as highlighted in two of the court decisions), the same rationale could be used to justify the CDC’s suppression of almost any other activity that involves movement, and therefore could – according to the CDC’s reasoning – Do facilitate the “domestic spread” of the disease, which increases the likelihood of interstate spread (the latter is at the heart of the Licensing Act, 42 USC Section 264 (a)). Nothing in the law limits the authority of the CDC, either because of the magnitude of the effects or even because of the dangerousness of the disease in question. For the same reason, the CDC could justify an order that suppresses any activity that is at risk of spreading the flu or the common cold – even if the increase in the spread of the order is relatively small.
The seemingly limitless nature of the authority claimed by the CDC is the biggest flaw in their case and the main reason the moratorium was invalidated by the two most imperative decisions against them (the first decision against the order is based on much more questionable constitutional reasons). The justifications offered in the latest version of the Moratorium Ordinance do not help to resolve this problem.
Furthermore, the logic of the CDC is based on the notion that “large-scale evictions” will take place if the arrangement is not expanded. In reality, there is little reason to believe this, for reasons that I have summarized in my criticism of the original Trump order here.
Finally, for those who would argue that courts should fall back on the expertise of public health experts, it is worth noting that the eviction moratorium may have been imposed on a non-arbitrary CDC by the Trump White House (and later by Biden). The Washington Post recently reported the following:
Behind the scenes … some CDC officials have expressed concern about the policy. The CDC is reluctant to get the administration to use the powers of the health department to renew the moratorium, according to a federal health official who spoke on condition of anonymity to share an ongoing political debate. The CDC’s reservations date back to last year when the Trump White House first announced the policy, two sources said.
“The previous government used the authority of the CDC to implement this program in a way that nobody in the agency believed it had the authority to do,” said one of the officials, adding that the debate over the recent extension had been fierce.
However, the Biden government has not identified any other agency that could be a better steward of the policy, the two sources said, putting the CDC on track to approve another renewal.
As always, it is difficult to assess the credibility of anonymous sources. But if what they’re saying is true, it would be just one of many cases during the Covid crisis where the CDC gave in to White House political pressure. Another example is Trump’s policy of using public health as a pretext for evicting asylum seekers at the border.
As I pointed out earlier, the CDC’s vulnerability to political pressure is another reason people across the political spectrum should be reluctant to allow the agency to claim the tremendous power it would have if the courts were to uphold the eviction moratorium. If you are a Democrat who trusts the current government to responsibly exercise that authority, you have similar trust in a future Republican government led by the likes of Josh Hawley or Ted Cruz. If you are a Republican and you trust Trump, do you have any similar trust in Biden or potential future Democratic presidents like Kamala Harris?
Overall, I am skeptical of both the legitimacy and wisdom of the CDC moratorium. It remains to be seen whether higher courts will agree to this assessment. At this point, the only sure prediction is that the moratorium litigation will continue for at least three months.
NOTE: Plaintiffs in some eviction moratorium lawsuits are represented by the Pacific Legal Foundation, where my wife works. I myself played a minor (unpaid) role in advising PLF in this litigation.
UPDATE: This post was published before I became aware of today’s Sixth Circle decision making the moratorium illegal (the Court of Appeal’s first decision on the matter). I have analyzed this decision here.