Federal judge: The CDC has no authority to create an eviction moratorium

A federal judge in Washington, DC has determined that the Centers for Disease Control and Prevention had no authority to implement a nationwide eviction moratorium. The full 20-page decision was posted here by CNN. But the conclusion is simply that the CDC shouldn’t have done this.

The Court recognizes that the COVID-19 pandemic is a serious public health crisis that has presented unprecedented challenges for public health officials and the nation as a whole. The pandemic has triggered difficult policy decisions that have had enormous real-world consequences. The nationwide eviction moratorium is one such decision.

It is the role of the political branches, and not the courts, to assess the merits of policy measures designed to combat the spread of disease, even during a global pandemic. The question for the Court is a narrow one: Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not.

The first eviction moratorium was an act of Congress passed early last year which wasn’t renewed. President Trump then issued an executive order last August asking the HHS Secretary and the CDC to consider whether or not they could issue an eviction moratorium to fill the gap.

In September the CDC issued a moratorium that was set to expire at the end of 2020. Because the CDC’s authority is limited to stopping the spread of the disease, it argued that the moratorium would prevent the spread of COVID by preventing the relocation of people (those who would have been evicted). The CDC moratorium applied to all rental properties nationwide but only to renters expecting to earn less than $99,000 over the course of 2020 (and meeting some other requirements).

Before the moratorium expired at the end of last year, Congress voted to extend it one month through the end of January 2021. Then before that extension expired the CDC extended it through March. Finally, it was extended again through June 30.

Today’s order wasn’t the first one to conclude the CDC had exceeded its authority. Back in March a judge in Ohio came to the same conclusion:

U.S. District Judge J. Philip Calabrese, who was nominated to the court by former President Donald Trump, sided with a group of property owners who had argued in October that the CDC lacked the power to ban them from evicting their tenants…

“This decision makes clear that federal agencies can’t exercise power Congress has not given them,” Steve Simpson, a senior attorney at the Pacific Legal Foundation, which represented the landlords, said in a statement. “Now our clients no longer have to provide housing for free.”

And back in February, another judge in Texas said the same:

A federal judge in Texas has ruled that the national ban on evictions that’s been in place since September is unconstitutional.

“Although the Covid-19 pandemic persists, so does the Constitution,” U.S. District Judge John Barker wrote Thursday evening, siding with a group of property managers who argued that the ban exceeds the power of the federal government.

It’s not clear what will happen now because DOJ will likely appeal this latest ruling which means it may not be allowed to take effect. But it seems the writing is on the wall and sooner or later this is probably going to end with a ruling that more or less concludes the CDC never should have done this in the first place.