CDC

The CDC's New Eviction Moratorium Has Virtually all the Same Flaws as the Old

It still covers some 90% of the country, and still rests on a theory of virtually limitless CDC authority. Even President Biden acknowledges the order is legally dubious.

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The Centers for Disease Control's repeatedly extended nationwide moratorium on evictions expired on July 31. The Biden administration initially chose not to try to extend it again, because of  a series of defeats in court, as well as indications that a majority of Supreme Court justices believe the the moratorium was illegal and would so rule if the issue came before them.

Earlier today, however, the CDC issued a modified new version of the moratorium that applies "only" to areas where there are "substantial [or] high levels of community transmission" of the coronavirus. As the Washington Post notes, that currently includes some 90% of the United States. The new moratorium is scheduled to expire October 3. But, like the old one (which was repeatedly extended by the Biden administration, after first being adopted under Trump in September 2020), it could potentially be extended again.

The new moratorium is an only slightly scaled down version of the old. As such, it has virtually all the same flaws and legal vulnerabilities. Pretty much every legal argument raised against the original moratorium—and accepted in numerous judicial rulings against it—also applies to the new one. Meet the new moratorium, same as the old moratorium!

Most notably, the new version still must rely on a legal rationale giving the CDC virtually unlimited power to shut down any activity that might potentially facilitate the spread of disease in any way. What I wrote back in September 2020 about the original Trump-era moratorium applies to this one, too:

This broad interpretation of the regulation [and statute supposedly authorizing the moratorium] would give the executive the power to restrict almost any type of activity. Pretty much any economic transaction or movement of people and  goods could potentially spread disease in some way. Nor is that authority limited to particularly deadly diseases such as Covid-19. It could just as readily apply to virtually any other communicable disease, such as the flu or even the common cold.

Every year, thousands of people die because of the flu, and restrictions on mobility or on economic and social activity could  be seen as "reasonable" ways to limit its spread. 42 CFR Section 70.1 (on which the definition of disease in Section 70.2 is based) in fact defines "communicable diseases" as "illnesses due to infectious agents or their toxic products, which may be transmitted from a reservoir to a susceptible host either directly as from an infected person or animal or indirectly through the agency of an intermediate plant or animal host, vector, or the inanimate environment." Notice that this applies to any disease spread by "infectious agents," regardless of severity. The flu and the common cold clearly qualify!

Six of the nine court decisions ruling on the legality of the original moratorium have gone against it. That doesn't count a recent Eleventh Circuit ruling, in which a 2-1 majority refused to issue a preliminary injunction blocking the moratorium, but all three judges strongly suggested they believe the CDC order is illegal. Most of these rulings have singled out the issue of unlimited power, noting that it is both problematic as a matter of statutory interpretation and likely unconstitutional, because it violates "nonedelegation" constraints on the extent to which Congress is permitted to delegated its authority to the executive branch. The Sixth Circuit, for example, noted that "Under that interpretation [of the law advocated by the executive], the CDC can do anything it can conceive of to prevent the spread of disease. That reading would grant the CDC director neardictatorial power for the duration of  the pandemic, with authority to shut down entire industries as freely as she could ban evictions."

The limitation of the moratorium to areas with "substantial" or "high" Covid transmission does little to fix this problem. Nothing in the logic of the government's position suggests that the moratorium has to be limited in this way. As I have pointed out before, the authorizing statute imposes no limitations based on the extent of disease spread in  a given area. The only limits, if any, are on the types of actions the CDC can take to confine the spread. Thus, if the CDC can impose an eviction moratorium in areas with "substantial" or greater transmission, it can do so anywhere or everywhere.

I am far from the only person who believes the new moratorium is legally dubious. President Biden appears to agree:

In remarks to reporters shortly before the CDC made its announcement, Biden acknowledged that the move was likely to be subject to court challenge and appeared to express doubt about the legality of the move. He even said scholars he consulted felt the measure was probably not constitutional.

"I have been informed [the CDC is] about to make a judgment as to potential other options. Whether that option will pass constitutional measure with this administration, I can't tell you. I don't know," Biden said. "The bulk of the constitutional scholarship says that it's not likely to pass constitutional muster. … But there are several key scholars who think that it may and it's worth the effort."

For what it's worth, I agree with "[t]he bulk of constitutional scholarship," as the president described it. This order was illegal when first adopted under Trump, it was still illegal when Biden revived it, and a coat of slightly nicer lipstick can't change the fundamental nature of the pig now.

In one respect, the new moratorium may be on even weaker legal ground than the old. In its defense of the original moratorium, the federal government argued, among other things, that Congress had acquiesced in the CDC's claim of boundless authority, thereby legalizing it. This argument, already rejected by most judges who considered it, will be even harder to defend after the events of the last few days, when congressional Democratic leaders rebuffed the Biden administration's pleas to pass legislation extending the moratorium, because they didn't have the votes to do so in either the House or the Senate.

The new CDC policy has a variety of other flaws, as well. Like its predecessor, it is justified on the basis of severely flawed studies. It also fails to consider the likelihood that imposing eviction moratoria in the midst of crisis will set a dangerous precedent, and reduce the supply of housing over time, or increase its costs—thereby making vulnerable tenants worse off, rather than better.

The Biden administration also seems not to have given adequate thought to the dangers of allowing future administrations (including Republican ones!) to wield such broad power. If you trust Biden with the authority to shut down virtually any activity at any time, you may not feel the same way about Donald Trump, Josh Hawley, Ted Cruz, or other potential once and future GOP presidents.

We will likely soon see how well the revised eviction moratorium holds up in court. It's a safe bet to predict that most, if not all, the ongoing lawsuits against the original version of the moratorium will, with slight modifications, continue against the new one.

NOTE: The plaintiffs in some of the lawsuits against the original eviction moratorium are represented by the Pacific Legal Foundation, where my wife works (though she is not part of the litigation team handling the issue). I myself have played a minor (unpaid) role in advising PLF on the issues involved.

 

 

NEXT: What Happened to the Legality of the CDC Eviction Moratorium Between Saturday and Tuesday?

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  1. A lot of eviction notices went out Monday. Do they stand?

    1. Did lots actually go out?

      1. Not in the People’s Republic of NJ. There are state laws in place prohibiting eviction until February 2022.

        1. “There are state laws in place prohibiting eviction until February 2022.”

          Are there state laws foregoing property taxes until February 2022?

          Please stop laughing and answer.

        2. How does such a law withstand a Contract Clause challenge?

  2. Time for the folks who were disappointed with the most recent S.Ct. non-decision decision to file their petition for rehearing.

    Just imagine the Left, if the CDC were to ban, say, gay sex on the grounds of heightened likelihood of transmitting AIDS.

    1. I think they should ban reproduction by blacks on the grounds that their 85 IQ spawn are more likely to engage in criminal activity.

  3. Sad confirmation that Kavanaugh was naive.
    Will the Supreme court repeat its mistake – maybe using different rationale?
    What are the betting odds that SCOTUS fails to make a decision?

    At this point I think the court has done enough damage that any decision it does render is moot since the government now has a high profile taking of liberties in which none of the individual authoritarians are punished. That’s the main lesson future government authoritarians will have learned.

  4. I should have made clear in my last post that if Kavanaugh consistently applies his rationale for not taking the previous case then the court shouldn’t take the new case because the time till the moratorium ends is only a short time away. He’ll be reminded of his own rationale.

  5. Serious question, what happens if state courts (where all evictions are filed) decide to ignore this and follow state law, allowing tenants to be evicted? What can the federal government actually do?

    1. Wouldn’t the CDC moratorium be essentially moot in those states? There might be a constitutional challenge (at least at the state level for perhaps non-delegation clause reasons), but those state level laws would almost certainly remain state level legal questions.

      1. Federal law often preempts state law. But dubious that CDC’s strained “interpretations” that the courts seem to be frowning upon
        would do so? I guess all to be litigated.

    2. My guess, the state win that case, based on Cedar Point and their police powers.

  6. Biden is a lawless, criminal thug.

    The Democrats will continue these games as long as there are no personal criminal consequences to them.

    It’s just like with unconstitutional gun laws. They can change it slightly and relitigate the whole thing.

    1. And this is what Ilya wanted! He doesn’t get to complain about this AT ALL. He voted for this. He gets it good an hard. He cared more about mean tweets than actual constitutional violations. So that’s what he gets.

  7. If we were remotely serious about these things, a President doing something he openly admits is constitutionally dubious would be an open and shut case for impeachment.

  8. Polling read. Dems: Don’t just stand there, do something! This I’d something! We must do this@

  9. Presidents have done plainly unconstitutional things for a long time. But now the president feels comfortable openly admitting that his choice is unconstitutional. He just wants to “buy time” while it’s litigated.

    If the American people cared about the Constitution, no president would dare to do that.

    1. When the American “people” referred to the voting public back when we had reasonable and common sense restrictions on voting, they did.

      Now the American “people” includes the “gimme gimme gimme my stimmy stimmy stimmy check.”

    2. Yes yes, much better to have Presidents who just lie all the time. Or maybe it’s better to be an idiot and not realize that it’s unconstitutional and do it accidentally?

    3. Obama openly admitted DACA was unconstitutional, even explained why, then went ahead and did it. The only novelty here is that Biden admitted the unconstitutionality in his press conference announcing that he was going to do it.

      1. The EO he passed was a lot narrower than DACA. We’ve been over this. But I guess you forgot!

    4. Because he knows that Trump did very little except tweet mean things. And the people who elected him should have known he is all for clearly unconstitutional things. So they can’t do anything.

  10. By the time this is resolved most middle-class landlords will all be in bankruptcy having lost all their savings and their property as well.

    1. That’s the goal of this plandemic. Let the Rothschild types buy up everything with free money from the Fed.

  11. Given the rhetoric that the left has been using about the Supreme Court, I figured it was just a matter of time until a Democratic president openly defied a ruling of the court. It’s only happened twice, once by Andrew Jackson and the other by Abraham Lincoln, and its something even the fiend Trump didn’t contemplate doing. Unless the 6th circuit enjoins this based on its ruling last week, or Kavanaugh grows a spine (unlikely, see Roberts, John) the left will have successfully rendered the Supreme Court powerless without having to resort to court packing or term limits.

    1. Since evictions are enforced by courts and local officials, this is not the type of issue that a President has any actual power to defy the courts on. Landlords need merely claim the new moratorium is illegal, as they undoubtedly will.

      1. “Landlords need merely claim the new moratorium is illegal, as they undoubtedly will.”

        The order has criminal penalties.

    2. “(unlikely, see Roberts, John)”

      He joined the other three liberals, otherwise Kav’s concurrence would just have been a separate dissent.

    3. Actually Lincoln ignored Supreme Court rulings twice. One was his refusal to enforce the Dred Scott ruling. The second was to declare martial law in defiance of the Supreme Court’s disapproval.

  12. The mortatorium is based on
    1) the dubious belief that it will slow the spread of covid (at least by more than an insignificant amount)

  13. The Steel Seizure cases come to mind.

  14. That said, it seems to me that a very limited eviction moratorium might be legal.

    The CDC has an explicit statutory power to quarantine. Quarantine implies staying in place and not moving.

    So an obvious clearly legal (so far as the non-delegation doctrine is concerned) limited eviction moratorium would be one prohibiting eviction of people subject to an in-home quarantine, for the duration of the quarantine period.

    Since quarantine periods are about 2 weeks, and affect a limited set of people, this wouldn’t be much of an eviction moratorium. But it would be something. It might, however, have negative consequences. Perhaps people short on rent might start repeatedly visiting high-risk areas specifically so they would become subject to quarantine each time they return.

    1. Good thought, ReaderY, but not workable in practice.

    2. The more sensible rule is to tell people to stop visiting high-risk areas. That’s equally authorized by the law and more directly stems the spread of disease. Especially given that “exposure” is usually considered being within six feet of a known case for at least 15 minutes. Unless known cases intentionally break quarantine (hello, police power), exposure is hard to ensure.

  15. I suppose one good outcome of this blatant end run is that maybe it will annoy more Justices enough they will begin to play the “capable of repetition yet evading review” card more often when governments at all levels engage the courts in a game of whack-a-mole via techniques such as Biden has done here. But, hope springs eternal…

    October – yep, just about enough time that Biden is pretty sure it will have expired and become moot and dismissed as such by the time it gets to SCOTUS deliberation. Let’s hope he’s wrong on that.

    And, what magically happens on October 3 that makes evictions “safer”? It’s likely the situation on that day won’t be that much different than it is today. Why not base it on something potentially meaningful – like new infections per 100K or COVID deaths per 100K?

  16. I thought the CDC made suggestions and has no right to make laws. Also, what gives them the right to create rules outside of decease (ie rent)?

    1. The putative authority for this is primarily a delegation from the Surgeon General’s powers under 42 U.S. Code § 264. The executive branch has long written regulations that have the force of law.

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