Federal Appeals Court Sneaks in One Final Ruling Against the CDC's Expiring Eviction Moratorium

Circuit Judge John K. Bush accuses the federal government of laying claim to "near-dictatorial powers."


The government's eviction moratorium expires at the end of this week. A federal appeals court in Tennessee just gave it one final kick on the way out the door.

On Friday, the U.S. Court of Appeals for Sixth Circuit unanimously ruled that the U.S. Centers for Disease Control and Prevention (CDC) exceeded the authority given to it by Congress when it issued a near-comprehensive ban on evictions for non-payment in September of last year.

The CDC justified that unprecedented policy—which applied to anyone making under $99,000 (or couples making under $198,000) who signed a financial hardship declaration—by pointing to the 1944 Public Health Service Act. That law gives federal health officials the power to "make and enforce such regulations" that are "necessary to prevent the introduction, transmission, or spread of communicable diseases."

Under both President Donald Trump and President Joe Biden, the CDC claimed that its moratorium was necessary for mitigating the pandemic's spread. Otherwise, evicted renters would move into more crowded living situations, potentially bringing COVID-19 with them.

But the CDC's powers, wrote Circuit Judge John K. Bush, are limited by the succeeding sentence in the Public Health Service Act. In order to carry out and enforce those regulations, the law says, the CDC director "may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings."

"Those specific grants of power would be superfluous" if the intent of Congress was to give the CDC power to impose any regulation it considered "necessary," wrote Bush.

Under the government's interpretation of the law, Bush continued, "the CDC can do anything it can conceive of to prevent the spread of disease. That reading would grant the CDC director near-dictatorial power for the duration of the pandemic, with authority to shut down entire industries as freely as she could ban evictions."

The Sixth Circuit's ruling represents the sixth time a lower court has struck down the CDC's moratorium, with most decisions similarly criticizing the near-limitless powers the agency was trying to claim for itself.

Three other federal courts have ruled in favor of the CDC's eviction moratorium, including a U.S. Court of Appeals for the D.C. Circuit ruling in June. That same month, the U.S. Supreme Court refused to take up an emergency petition to hear a challenge to the moratorium, although a majority of five justices did indicate that they considered the policy illegal.

While the federal moratorium is set to expire at the end of the week, Friday's Sixth Circuit ruling still has some important practical implications, says Ilya Somin, a law professor at George Mason University.

"The implications of the government's position are extremely broad—that the CDC can shut down activity of any kind" to combat a disease, regardless of its lethality or infectiousness, he says. Friday's decision "will likely have an impact on future attempts to use these powers."

The Sixth Circuit's decision, he says, is binding on lower district courts in that circuit who could hear challenges to a future eviction moratorium case. In addition, appellate courts try to avoid split opinions, meaning Friday's ruling could influence how they decide similar cases.

"Aside from legal doctrine and precedent, the fact that there's been a wave of rulings against the administration puts this administration and future administrations on notice that if they try to use a power like this it will end up litigation and they might lose," Somin adds.

By all indications, the Biden administration will let its eviction moratorium expire come July 31. Only six states, including New York, California, and Washington, continue to have state-level moratoriums of their own.

These emergency policies proved surprisingly sticky throughout the pandemic, with both states and the federal government continuing to push back their expiration dates. They allowed governments to keep people housed at zero public expense. Instead, landlords have eaten the cost of hosting nonpaying tenants.

These same governments have generally been exceedingly slow at distributing billions in federal rent relief meant to keep tenants housed and to make landlords whole.

It is questionable whether these moratoriums were needed to prevent the oft-prophesized wave of evictions. (Evictions have been below historic averages during the pandemic, even in places that, prior to the CDC's order, had no eviction moratorium in place.) And the research suggesting they've prevented thousands of COVID deaths is likely deeply flawed.

Even with the policy set to expire in a few days, it's good to see courts aren't letting this envelope-pushing exercise of government power go without official criticism.