Coronavirus

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."

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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.

NEXT: Gun Control Scheme Harms Black and Hispanic New Yorkers, Public Defenders Tell Supreme Court

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

  1. Anybody at the cdc going to get arrested for violation of the law?

    1. Laws are for little people.

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    2. Only if there was enough fraud to meaningfully change the outcome. Otherwise, trust the experts.

    3. More of an insurrection than mere law violation.

      1. More of a guideline than a law.

    4. It is not a criminal offense. So, it is just in the courts.

      1. Will any of them be held civilly responsible for damages to business or home owners harmed?

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  2. I would hope landlords will get restitution, either paid back rent or by suing the government. But I know that’s ridiculous because we live in a country in which most citizens (and non citizens) believe that they are owed everything just for breathing. And government is going to let them have it good and hard.

    1. End qualified immunity for bureaucrats.

      1. End qualified immunity for bureaucrats.

        ftfy

        1. End bureaucrats.

          ftfy

          1. +

    2. Yes, let’s create a system wherein the government pays people to house deadbeats. There is no way this will lead to perverse incentives. The only way to solve this problem is with MORE SPENDING.

  3. When those moratoriums run out, shit’s going to get crazy real fast as people need to find a years worth of rent under the couch cushion’s.

    All the government did was delay the ‘pain and hardship’ into one huge event. I’m curious to see how it plays out.

    1. Delayed? Compounded. Now they will try and push rent forgiveness.

      People will move out to avoid paying. Then not find a new place, and end up on the street.

      1. Serves the rats right for abusing their landlords.

    2. Smells like an Executive Order.

      Would be best if each landlord due money would either sue the CDC or Biden. Perhaps in small claims court. Similar to the tactic that Scientology used to be declared a IRS recognized religion.

    3. There will probably be a lot of single-family stuff going up for sale as frustrated landlords disinvest from what was always a problematic market in many areas – given the excessive rights too many deadbeat renters already have – and the CDC now made a nightmare by usurping private property rights. Of course, that will only create less rental inventory, especially for families, and drive up prices of what’s left.

    4. You nailed it! That is exactly what is going to happen. There is going to be a lot of loss in the real estate market place, soon. and lots of places for rent with nobody living in them. Those evicted will likely not have money for rent, so welfare is going to have to pay it.

    5. Especially if they live in New York, California, or anywhere rent is obscenely high. Yeowsers.

  4. Note to self: add “Name and phone number of landlord from [start of this bullshit] to [fuck if I know].” to the standard rental application.

    1. Jokes on you. It’s never going to end. Biden is going to extend that shit on Friday because if he doesn’t he’ll be hanging from a lampost by next Friday.

      1. And just to clarify, because apparently these things need to be clarified these days, to any secret service troll with nothing better to do with their time that is not a threat against Biden (at least not from me). His own constituency will tear him apart because nothing is more addictive than free stuff, and now that they’ve had a taste of free rent they’ll peacefully protest to keep it. Just watch.

        1. Clarification noted.

    2. add “Name and phone number of landlord from [start of this bullshit] to [fuck if I know].” to the standard rental application.

      Just pass an executive order making it illegal to ask about previous payment history. Do I have to think of everything?

      1. You’re good.

  5. “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,”

    well whoopdeedoo! so future admins know that they can use a power they don’t have the authority to, get away with if for over a year, have it reversed by a court, and suffer no personal or occupational consequences. Take that you tyrants!

    1. *might have it reversed by a court

    2. The horror….

  6. The only thing that will really make the CDC and other overreaching agencies think twice is if they are made civilly liable for monetary damages to the landlords and/or the leadership who take such decisions are made criminally liable.

    1. Didn’t Biden just propose to double the CDC budget? Perhaps to cover civil liabilities owed to landlords?

    2. That is the crux of all government action (or inaction) isn’t it? That they have no meaningful stake in the quality of their decisions affecting those they are supposed to serve, particularly those in non-elected positions.

    3. The asholes in charge could, perhaps just get shit canned.

      Pour encourager les autres now or sic semper tyrannis tomorrow

  7. Friday’s decision “will likely have an impact on future attempts to use these powers.”
    Sure it will.

  8. So this is going to be fun to watch:

    Landlords, having been forced to “eat” (lose) over a year’s rent, will kick out non-paying renters almost immediately (well, start the proceedings anyway), and when the non-rent paying former tenants go looking for a new rental, they will be unable say where they lived since March of last year, for fear the landlord will “rat them out” for non-payment. There’s going to be a huge wave of homelessness as these folks look for new places to live.

    Biden admin could shake some money out for rent, but that should count as a ‘gift’ to the renter, reported on their taxes as income. I suspect the administration will force landlords to “eat” the loss and report it on their taxes as a loss.

    I suspect we’re going to see a wave of court cases of renters that claimed Covid-related hardship, but didn’t actually lose their jobs or suffer a significant loss of income – those people should be required, at a minimum, to pay their back rent.

    1. They won’t be homeless, they not only have the rent money they didn’t pay, they have all the stimmy money from the rest of us including the new money taken from older savers and given to younger baby factories. They are out to wreck us and so far doing it unopposed.

      1. San Fran and Seattle have tent villages.

        1. Try getting a good spot in one of those hoovervilles. Almost impossible nowadays.

    2. The left wing news media are already running local stories claiming the CDC’s expiration (of free rent) is going to make homeless lots of already poor people (especially minorities) who will be evicted soon.

      And of course, the news media is taking the side of the poor “victims” who didn’t pay their rent for the past 17 months.

  9. A dollar says the CDC is going is still going to enforce a debt moratorium, you’ll have to start paying rent starting in August, but you won’t have to pay any of the back rent owed. They’ll tie that up until Congress agrees to some sort of bailout plan and then the thing will get mooted out. In other words, nobody actually gives a shit whether or not what the CDC is Constitutional.

  10. FedGov drunk on the fourteen atoms of dictatorial power they invented for themselves.

    Turh OFF most of FedGov.

  11. Oops, we mak-a-mistaka, hope no hard feelings. Your damages? Silly civilian, we are immune. Lawsuits are for you plebes.

  12. “…Circuit Judge John K. Bush accuses the federal government of laying claim to “near-dictatorial powers.”…”

    And the rest were claimed by D governors.

    1. But Brandy/turd (can’t tell ’em apart) will be here to tell us there’s no difference between R’s and D’s.

      1. Both sides!

  13. Supreme Court: We could uphold our oath and rule on this, but they said they wouldn’t do it anymore, so we ignored it.

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  16. An UN-Constitutional Agency acting like a dictator???
    No; Who would’ve guessed — The founding fathers?
    Who had seen this rise in Gov-Gun-Power get so abusive they fought a “killing” war to get away from it?

    Yet; here we are. History repeating itself AGAIN because Power-Mad stupid people willfully remain ignorant to the basic principle that lunch just isn’t ever *free*.

  17. “…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”

    and this is why we need wide and deep reform to the Qualified Immunity that these tyrants operate under. there is simply NO CONSEQUENCE to simply doing whatever they fucking want to. why would they seek to comply with a constitution…NOTHING HAPPENS IF THEY WIPE THEIR ASS WITH IT.

  18. Well that ???????? Figures.

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