BY: JOHN V. GIARDINELLI, ATTORNEY AT LAW | OF COUNSEL
In March of 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) in an attempt to alleviate the many problems unleashed by the rapidly spreading COVID–19 pandemic.1 Among other basic financial programs, the Act provided for a 120-day eviction moratorium for all properties in the U.S. that were involved in federal assistance programs or that were taking advantage of federally backed loans.1 This limited moratorium on evictions ended in July, 2020, and Congress did not renew it or pass any other bill authorizing the approval of such action.
Despite Congress not prioritizing the action legislatively as dictated by the Constitution, the CDC, an Executive Branch
agency, decided to act unilaterally in imposing a new moratorium.1 This moratorium was even more sweeping than
the one passed by the CARES Act and blanketed over every single residential property nationwide.1 It also imposed criminal sanctions on anyone who violated the terms of the moratorium. The CDC’s moratorium was set to extend from July 2020 until December 31, 2020. However, Congress, through another relief bill, extended the CDC moratorium as written for another month.1 When this deadline approached, the CDC once again unilaterally extended its own deadline multiple times all the way until July of 2021.1
The CDC, an agency tasked to deal with disease control, claimed that it had authority to engage in this unilateral action based on §361(a) of the Public Health Service Act for authority to promulgate and extend the eviction moratorium. However, this section of the PHSA only states:
“The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of
communicable diseases from foreign countries into the States or possessions, or from one State or possession
into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General 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, and other measures, as in his judgment may be necessary.”
Please note that there is no actual mention of anything involving landlords, tenants, mortgages, or rent. In fact, the 1944 Statute was only ever used to quarantine infected individuals and prohibit the import or sale of animals known to transmit disease.1
Needless to say, landlords, REALTORS®, rental property managers, and anyone who made their living through these
means saw this as an extensive overreach of a rouge government agency and legal challenges were brought all over the nation against the CDC moratorium.
In the Moratorium’s first trip to the United States Supreme Court, the emergency application to vacate stay was denied.
While this, on its face, was a victory for the Moratorium, it was clear to many that the CDC action would not last much longer. Justice Kavanaugh, in his opinion, wrote:
“I agree with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium. Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application to vacate the District Court’s stay of its order.”1
In a rather utilitarian manor, and to the horror of many strict Constitutionalists, Justice Kavanaugh justified keeping the order in place for the remining few weeks to give the Government time to set up rental assistance.1
While it survived for a few additional weeks, the writing was on the wall for the Moratorium.
As the Moratorium once again expired on July 31st, the CDC defiantly extended it despite Kavanaugh’s concurrence that clearly signaled its doom in court. Once again, the issue came up before the Supreme Court. However, this time there would be no victory for the Moratorium. In a Per Curiam opinion, the Court wrote:
“Indeed, the Government’s read of §361(a) would give the CDC a breathtaking amount of authority. It is hard to see what measures this interpretation would place outside the CDC’s reach, and the Government has identified no limit in §361(a) beyond the requirement that the CDC deem a measure “necessary.” Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable? Require manufacturers to provide free computers to enable people to work from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work? This claim of expansive authority under §361(a) is unprecedented. Since that provision’s enactment in 1944, no regulation premised on it has even begun to approach the size or scope of the eviction moratorium. And it is further amplified by the CDC’s decision to impose criminal penalties of up to a $250,000 fine and one year in jail on those who violate the moratorium. Section 361(a) is a wafer-thin reed on which to rest such sweeping power.”1
In an opinion that any lay person could have reasoned, the CDC Eviction Moratorium came to an end as the Justices concluded that Congress must specifically authorize any federally imposed eviction moratorium since the CDC had no power to unilaterally do so.1
Commentators were quick to declare the Supreme Court’s ruling as a harbinger for mass evictions and a huge homelessness crisis in the county.1 However, a few months have passed and no such crisis has occurred.1 Many theorize that this lack of a crisis is due to states like California passing their own moratoriums and rental aid1 , or the federal aid Kavanaugh discussed in his first utilitarian opinion. However, with state moratoriums set to expire soon, experts are still worried that a homelessness crisis is looming on the horizon for millions of Americans. Despite many
wishes that the CDC moratorium remain in place, the legal reality of its unconstitutionality was abundantly clear.
How will this situation resolve? Will cities and states continue to shield tenants? Will Congress step in once again?
Only time will tell.
