The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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 SARS–CoV-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.