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The Statutory Authority for the Nationwide Eviction Moratorium

The Director of CDC "may take such measures to prevent such spread of the diseases as he/she deems reasonably necessary."

|The Volokh Conspiracy |


Today, the Center for Disease Control and Prevention filed a notice in the Federal Register. The order purports "to temporarily halt residential evictions to prevent the further spread of COVID-19." No, not just in federal housing. Nationwide.

Under this Order, a landlord, owner of a residential property, or other person3 with a legal right to pursue eviction or possessory action, shall not evict any covered person from any residential property in any jurisdiction to which this Order applies during the effective period of the Order.

CDC argues that keeping people in their homes will prevent the spread of COVID-19:

In the context of a pandemic, eviction moratoria—like quarantine, isolation, and social distancing—can be an effective public health measure utilized to prevent the spread of communicable disease. Eviction moratoria facilitate self-isolation by people who become ill or who are at risk for severe illness from COVID-19 due to an underlying medical condition. They also allow State and local authorities to more easily implement stay-at-home and social distancing directives to mitigate the community spread of COVID-19.

Landlords who evict tenants to qualify for this program face fines of up to $100,000 and a year in prison.

What is the authority for this sweeping order? The thirty-seven page notice cites a single regulation:  42 CFR § 70.2. It provides:

Whenever the Director of the Centers for Disease Control and Prevention determines that the measures taken by health authorities of any State or possession (including political subdivisions thereof) are insufficient to prevent the spread of any of the communicable diseases from such State or possession to any other State or possession, he/she may take such measures to prevent such spread of the diseases as he/she deems reasonably necessary, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.

To be sure, this regulation allows the Director to "take such measures to prevent such spread of the diseases as he/she deems reasonably necessary." But there are limits of this delegation. The regulation provides examples of such measure:  "inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection." All of these measures are localized, and limited to prevent the spread of an infection in a single building or location. None of these examples are even remotely close to a nationwide moratorium on evictions. This action is far beyond the scope of delegated authority.

Moreover, the Director cannot order state courts to not process summary evictions. A landlord could rely on these processes, but then face a federal prosecution for doing so. Would any landlord risk it?

This eviction moratorium lacks even a patina of statutory authorization. Landlords can, and should challenge this executive action.

In August, I blogged about the President's executive actions for disaster relief and payroll tax deferral. Both actions were well within the scope of the President's statutory authority. For days, critics argued these actions were unconstitutional. No one ever backed this argument up. These positions were pure political posturing. Now, about a month later, all objections have subsided. Yet, I have seen nary an objection to this eviction moratorium.

One final, pragmatic point. This order only delays evictions. It does not excuse back rent. In theory, once January rolls around, people would be required to pay five months of back rent. But that will never happen. Whoever is President in December will sign into law a bill that funds all of this back rent. All of it. In effect, President Trump gave millions of Americans a five month reprieve from paying rent. Any litigation will likely be mooted come January, as a bill will make the landlords whole.