Nondelegation

Biden Administration Extends CDC Eviction Moratorium Until June 30—the Legal Battle Over it Will Continue

The new order is similar to the old, but includes an extensive section defending the measure on public health grounds.

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Earlier today, the Biden administration issued an order extending the Centers for Disease Control nationwide eviction moratorium until June 30. Biden's previous revival of an order initially issued under the Trump administration is set to expire on March 31.

The new order makes only minor substantive changes to the old one, other than the three-month extension. Those changes will have little, if any, impact on the ongoing litigation over the moratorium's legality.

That fight is now set to continue for at least another three months. So far, three federal district courts have ruled against the order, while two have upheld it. I analyzed these rulings here, here, and here. These cases will now be reviewed by appellate courts, and other lawsuits against the order will also continue.

In my view, both the original Trump order and Biden's revival and extension of it are illegal because they go beyond what Congress has authorized the CDC to do; if the statute did go that far, it would be an unconstitutional delegation of legislative power, effectively giving the CDC the power to suppress virtually any activity of any kind.

While the latest version of the order has few substantive changes, it does include an extensive new section defending the moratorium on public health grounds. It is possible this was included in order to bolster the government's position in the ongoing litigation over the legality of the moratorium.

I could be wrong about this. But, at least at this point, I am skeptical that the justifications in the new order are likely to persuade any judge to uphold it that would otherwise be inclined to strike it down. The main argument the CDC offers is that eviction increases movement, which in turn is likely to increase the spread of the disease:

Although data are limited, available evidence suggests evictions lead to interstate spread of COVID-19 in two ways. First, an eviction may lead the evicted members of a household to move across state lines. Of the 35 million Americans who move each year, 15% move to a new state. Second, even if a particular eviction, standing alone, would not always result in interstate displacement, the mass evictions that would occur in the absence of this Order would inevitably increase the interstate spread of COVID-19. This Order cannot effectively mitigate interstate transmission of COVID-19 without covering intrastate evictions, as the level of spread of SARSCoV-2 resulting from these evictions can lead to SARS-CoV-2 transmission across state borders. Moreover, intrastate spread facilitates interstate spread in the context of communicable disease spread, given the nature of infectious disease. In the aggregate, the mass-scale evictions that will likely occur in the absence of this Order will inevitably increase interstate spread of COVID-19.

As I have previously pointed out (and as emphasized by two of the court decisions striking down the order), the same rationale could be used to justify CDC suppression of almost any other activity that involves movement and, therefore—per the CDC's reasoning—could facilitate "intrastate spread" of the disease, which in increases the likelihood of interstate spread (the latter is the focus of the authorizing statute,  42 U.S.C. Section 264(a)). Nothing in the statute limits the CDC's authority based on either the size of the effect or even on the dangerousness of the disease in question. By the same reasoning, the CDC could justify an order suppressing any activity that risks spreading the flu or the common cold—even if the increase in spread the order forestalls was fairly small.

The seemingly limitless nature of the authority claimed by the CDC is the biggest flaw in its case, and the main reason why the moratorium was invalidated by the two most compelling decisions against it (the first ruling against the order is based on much more questionable constitutional grounds). The rationales offered in the latest version of the moratorium order do nothing to fix that problem.

Moreover, the CDC's logic is premised on the notion that "mass-scale evictions" will occur if the order is not extended. In reality, there is little reason to believe this, for reasons I summarized in my critique of the initial Trump order here.

Finally, for those inclined to argue that courts should defer to the specialized expertise of public health experts, it is worth noting that the eviction moratorium may have been imposed on an unwilling 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 trepidation about the policy. The CDC is reluctant to have the administration use the public health agency's authority to extend the moratorium again, according to a federal health official who spoke on the condition of anonymity to share an ongoing policy debate. The CDC's reservations date back to last year, when the White House under Trump first announced the policy, two sources said.

"The previous administration used CDC's authority to put this program in place in a way that no one at the agency thought it had the authority to do," said one of the officials, adding that the debate around the most recent extension has been fierce.

But the Biden administration has not identified another agency that might be a better steward of the policy, the two sources said, putting the CDC on track to approve another extension.

As always, it is difficult to evaluate the credibility of anonymous sources. But if what they say is true, this would be just one of many instances during the Covid crisis where the CDC yielded to political pressure from the White House. Trump's policy of using public health as a pretext for expelling asylum seekers at the border is another example.

As I have previously emphasized, the vulnerability of the CDC to political pressure is yet another reason why people across the political spectrum should be reluctant to allow the agency to claim the vast power it would have should courts uphold the eviction moratorium. If you are a Democrat who trusts the present administration to wield that authority responsibly, do you have similar trust in a future Republican administration led by the likes of Josh Hawley or Ted Cruz. If you are a Republican and you trusted Trump, do you have similar confidence in Biden or potential future Democratic presidents, such as Kamala Harris?

In sum, I remain skeptical of both the legality and wisdom of the CDC moratorium. Whether higher-level courts agree with that assessment remains to be seen. At this point, the one safe prediction is that the legal battle over the moratorium will continue for at least another three months.

NOTE: The plaintiffs in some of the lawsuits against the eviction moratorium are represented by the Pacific Legal Foundation, where my wife works. I myself have played a minor (unpaid) role in advising PLF on this litigation.

UPDATE: This post was published before I became aware of today's Sixth Circuit decision concluding that the moratorium is illegal (the first appellate court ruling on the subject). I analyzed that decision here.

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  1. Be quiet, serf.

    1. I wonder if Democrats would have been comfortable with some a blanket grant of power to the CDC to take any measures they deemed necessary when the AIDS epidemic hit during the Reagan Administration.

      Far more enlightened governments than ours,
      like for instance Castro’s Cuba quarantined the HIV positive in camps.

      1. By Cuban standards, they were more like gilded cages, but yes — cages. Isn’t it amazing how no one on the left either wants to mention this, nor that Castro had so run down the economy of that once-prosperous country that some reportedly intentionally caught HIV so as to get into the cage.

        1. some reportedly intentionally caught HIV so as to get into the cage.

          Did you learn that from the same cop in Massachusetts from whom you learned that the laws say something different than they actually say?

          1. Since the 14th Century, the infected have been quarantined. That Dem spy skunk quack Fauci refused to quarantine the early AIDS patients. He killed 20 million people, and cost the world $trillion.

            Then, for COVID he supports the lockdown of the normal, while infected asymptomatic young people went to work providing intimate care to nursing home residents, wiping them out.

            Meanwhile, tech billionaires are doing great.

          2. David, I bet you are a supporter of the notorious quack, Fauci. Your profession is quack. You take our $trillion and return no value whatsoever.

  2. Of course, the only reason that there will be massive evictions is that the CDC moratorium will cause all evictions to occur at once, rather than the normal distribution over time.
    So the CDC will be complicit in a spike of illness and death.
    Perhaps they should be defunded to help pay for the socialist takeover.

    1. Well, no, the CDC moratorium has almost certainly increased the number of eventual evictions, too, by encouraging those who could have kept current with their rent to skip payments, and spend the money on other things. When the moratorium ends, and the skipped payments come due, (More than technically, they’re already due, the federal government has just forbidden the only effective remedy.) eviction will happen, where it wouldn’t have without the moratorium.

  3. Biden, lawyer, traitor, enemy.

  4. If, as we all suspect the road to hell is paved with good intentions, the road the CDC has constructed here is an 8 lane superhighway..

    The evictions of hundreds of thousdands, maybe millions when the moratorium is ended, regardless of whether by the courts or by time will be a great example of bi-partisan policy that brings misery to all concerned.

    1. Perhaps the intention is to make it fiscally impossible to evict because you will be unable to find new tenants (without destroyed credit ratings) to replace the tenants you seek to evict.

      But the real question is landlord bankruptcy and what happens then. It is far easier to sell an empty building than one with tenants and hence, from a fiduciary duty point of view, the bankruptcy trustee should evict all non-paying tenants so as to maximize the value of the property.

      Beyond that, who knows — but I can see the banks preferring to have empty buildings on their inventory.

      And there is NO WAY that someone a year behind on rent is EVER going to make it up — or want to…

      This is going to be the biggest economic mess that this country has ever seen….

      1. Well, the biggest until, say, next year.

      2. Maybe the intention is to make it politically impossible to permit THAT MANY evictions, thus providing an excuse to put even more people on the dole, even as the economy is reopening.

        Create a need, and fill it.

        1. Beyond politically, how many evictions would it take to totally overwhelm the courts?

      3. It’s not easier to sell apartment buildings with no tenants, at least no paying tenants. And if I’m a bank I’m not sure I want to foreclose on an a building, apartments or single family house, with tenants that have to be evicted before i can resell the building.

        1. Which is easier to sell? An apartment building with no tenants, or an apartment building with tenants who aren’t paying, and can’t be forced to? The former, I would assume.

      4. No, there are people lining up now who are willing and able to pay the rent for the apartments that landlords are unable to kick deadbeats out of.

        1. Here in Greenville new apartment buildings are sprouting up all over the place; I really doubt any landlord would have the least trouble finding somebody to replace an evicted tenant.

  5. Ilya,
    Is there any chance a 5th amendment lawsuit could prevail: takings, just compensation, other?

  6. So the tenant doesn’t have to pay rent and the landlord can’t evict the defaulting tenant? Is that how this works? How could this possibly be legal?

    1. The solution is actually fairly simple.

      You go to your local high school thugs — who are under age 18 and hence not worried about criminal prosecution and give them both a key to the apartment and a few hundred dollar bills — mentioning that you will be out of town next Thursday.

      And if that altercation isn’t sufficient to encourage the tenant to voluntarily leave, you go back to said thug with more pictures of dead Presidents and mention that you’ll also be out of town a week from next Tuesday.

      Even before all of this, I’ve had police officers quietly tell me that this happens a lot more than anyone wants to mention. Massachusetts is a tenant-friendly state, and hence landlords do this…

    2. It can be ‘legal’ by the simple expedient of the government not caring if it’s legal.

    3. The law does not say that the tenant doesn’t have to pay rent. He does. Whether it’s collectable or not is a separate question, but it does continue to be owed.

      1. Yes, but that’s something of a joke. What does “owing” something mean, apart from it being collectable? Can a landlord pay the utilities with “owed” rent? Service the building’s mortgage?

        If 10 cents on the dollar of this “still owed” rent gets paid, it will be fairly surprising, short of Congress passing a bailout for landlords.

  7. I know, constitutionally speaking, almost nothing qualifies as a regulatory taking, but this is gotta be close to one in reality. There is no way landlords are ever going to be able to collect back rent in any meaningful amount and their property, which is essentially the only collateral, is being held hostage by the government since they provide the sole legal means for reclaiming property and are holding up that avenue.

    1. Constitutionally, a lot of things qualify as regulatory takings. It’s judicially that practically nothing qualifies.

  8. Meet the new boss, the same as the old boss. You would think that Russians would be able to foresee that outcome, but it seems not. At least maybe Prof. Somin will stop preparing compendia of libertarian ideas he thinks the Biden administration might be interested in.

    1. I’m sure glad those anti-Trump libertarians helped get this Biden guy in there. Because Trump was sooooo badddddd…..

  9. “First, an eviction may lead the evicted members of a household to move across state lines. Of the 35 million Americans who move each year, 15% move to a new state.”

    Even as rationales go, this is pretty thin. Of those 35 million Americans who move each year, how many move because of evictions? Of those, what percent move across state lines? Low and a low number, because if you can’t pay the rent you probably also can’t afford to change states. So really the CDC is taking the position it can ban anything because VIRUS.

  10. I guess the one thing we have all learned from COVID is that if the media present something as a dire health emergency – We’re All Gonna DIE! – then anything the government wants to do is permissible. Because Science!

  11. I like how Somin is rational and level headed and has no qualms evicting illegals from buildings if necessary but the complete opposite when it comes to countries.

    1. It’s almost as if countries aren’t private property and buildings are and thus the two issues are not analogous. Indeed, it’s almost as if the right to control who is allowed on one’s private property is thwarted by immigration laws.

  12. Just curious. Aren’t the migrations of birds taken as basis for federal legislation, because otherwise no coherent state policy to mange migratory birds would prove possible? If I have that right, why not justify likewise federal regulations to control Covid? At the very least, residents of state border areas which people cross routinely are at risk of Covid effects from border crossings. Some such areas—DC, NYC, Philadelphia, Wilmington, DE, cities in Northern NJ, for instances—are undoubtedly hugely influential with regard to interstate spread. Note that the collection of places just mentioned largely defines one of the worst-affected regions in the nation.

    Note also that household moving is a huge generator of inter-personal activity. Tenants in apartments may need crews to help packing, loading, and transporting. Landlords will bring together housecleaning crews, repair crews, painters, plumbers, electricians, carpet suppliers, handymen, appliance installers, and others, often exposing to each other indoors workers who either can’t worked masked, or who disdain to wear masks. Those crews then disperse to reassemble in endless permutations and combinations in other locations. Into that bedlam are then invited the various building inspectors, to look at plumbing work, electrical work, smoke alarms, carbon monoxide alarms, and what have you.

    And of course evictions will in some instances leave tenants who become homeless without refuge to shelter from the virus. Pandemic evictions consequent to mass unemployment not only increase homelessness, but also expose to protracted homelessness many tenants who would never otherwise have to seek re-housing with that blot on their credit and payment history holding them back.

    The notion that evictions do not encourage interstate spread of contagion seems far-fetched. Likewise, the notion that emergency powers to control a deadly pandemic somehow translate into all-encompassing and perpetual powers to control everything, based on containing spread of the common cold.

    Also, “limitless power,” arguments too often depend on hypothetical slippery slopes, threatening to avalanche society by happenstance downward, into a parade of horribles at the bottom. Arguments like those are overdue for limits of their own. Courts should treat them as likely irrelevancies, and demand their proponents show closely-related examples which actually work as described—or otherwise stick to the substance of the case under review.

    1. “Aren’t the migrations of birds taken as basis for federal legislation”
      .
      I’m not completely sure what you are asking, but if you are asking about the source of authority for various regulations concerning migratory birds, that is because the U.S. ratified a treaty according to the constitutional procedures for treaties.

      1. Could the U.S. have done that if the terms of the treaty were unconstitutional?

        1. I dunno. The text is:

          “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;…”

          I don’t know if a conflict between, say, the bill of rights and a treaty has ever been tested. Perhaps the lawyers can inform us.

          My political-not-legal guess is that if the US ratified a treaty saying ‘notwithstanding the 1A, any citizen of the US that criticizes the Chinese government shall be boiled in oil’, public opinion would view that as rather illegitimate.

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