Can the CDC Really Halt All Evictions? Q&A with SLF General Counsel.

Over the last six months, America has grappled with how to balance the legitimate authority of public officials in a health emergency with the constitutional rights of citizens. Sometimes the government has gotten it right, but too often it has gotten it wrong and exceeded its constitutional and statutory powers with no rational or supported reason for its action. Although protecting the public health is paramount during times like this, such protections must not come at the expense of our Constitution and rule of law. It is in times of crisis when our constitutional protections are most needed and also most vulnerable, for they are what set us as Americans apart from the rest of the world.

That is why it is so troubling that the Centers for Disease Control recently issued a nationwide moratorium on evictions and possessory actions against tenants of residential properties despite lacking the legal authority to do so. Not only is the nationwide moratorium unlawful in its promulgation, it is substantively suspect.

Southeastern Legal Foundation General Counsel, Kimberly Hermann, recently sat down with a group of owners of residential rental property to discuss the Centers for Disease Control’s moratorium on evictions.

Q: What is the CDC Nationwide Eviction Moratorium?

A: The CDC recently issued an order that prohibits landlords and property owners from pursuing eviction or possessory actions against tenants of residential property who attest that they meet the following five qualifications of a covered tenant:

(1) they have used best efforts to get all available government assistance to pay their rent or for housing;

(2) they either expect to earn no more than $99,000 (or $198,000 jointly) in 2020, were not required to report income to the IRS in 2019, or received an Economic Impact Payment under the CARES Act;

(3) they cannot pay their rent due to loss of income, loss of hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses;

(4) they are using best efforts to make timely partial payments; and

(5) eviction would make them homeless or they would have to move into close quarters in a new shared living setting.

Q: Can I be punished if I pursue eviction?

A: Yes. If an individual violates the CDC Nationwide Eviction Moratorium, he can be fined up to $100,000 per violation and he may be subject to one year in jail. If the violation results in a death, he can be fined up to $250,000. If an organization or company violates the moratorium, it can be fined up to $200,000 per violation, and if the violation results in a death it can be fined up to $500,000.

Q: How is the CDC Nationwide Eviction Moratorium being enforced?

A: In most situations, state courts have issued orders stating that because of the CDC order they have halted all evictions for covered tenants.

Q: How can the CDC halt evictions? It just doesn’t make sense that the CDC has the power to get involved in eviction actions.

A: SLF agrees, it makes no sense at all. The CDC claims to have the authority to halt evictions because of the coronavirus. Its argument goes something like this: COVID is contagious and if renters are evicted then they may have to live with other people. And because that would increase housing occupancy, more people could get the virus. There are many problems with the CDC’s argument. First and foremost, it ignores the efforts of state and local governments to stop the spread. Second, it fails to explain why halting eviction proceedings, more than other prevention strategy, is the proper place to draw the line. And third, the CDC fails to cite any evidence to show that infection rates have risen because of any eviction proceedings.

Q: Don’t state and local governments have the power to make and enforce landlord/tenant laws?

A: Yes, you are absolutely correct. The CDC does not have the power to preempt state laws regarding landlord/tenant issues. To take this a step further, the CDC’s Nationwide Eviction Moratorium actually unconstitutionally commandeers state resources and state officers. Or said another way, it forces state and local judges to enforce a federal regulatory scheme.

Q: Don’t federal agencies have to give the public a chance to weigh in before passing new rules and regulations?

A: Federal agencies must follow a law called the Administrative Procedure Act (APA). It does requires federal agencies to follow detailed procedures before it can issue a new rule—including publishing the rule and allowing the public a period of time for “notice-and-comment.” Here, the CDC claims the spread of COVID constitutes and emergency and so it did not have to follow those procedures. SLF disagrees. As one federal district court recently explained when examining Pennsylvania’s stay-at-home order, “[A] public health emergency does not give . . . public officials carte blanche to disregard the Constitution for as long as the medical problem persists.” The CDC would be wise to take those words to heart.

Q: My county court has halted ALL evictions even where my tenant has not and cannot meet all the qualifications of a covered person. Does the CDC Nationwide Eviction Moratorium apply? Can my county court do this?

A: Where a local or state government body has imposed a stricter moratorium than the CDC Nationwide Eviction Moratorium, the CDC’s order does not apply. Whether your local county court (or any other state or local government body) can halt all evictions is a great question and the legal answer is, it depends. Although we would need to look at the specific order, generally speaking, we would argue that a local eviction moratorium would be unlawful for many of the same reasons as the CDC Nationwide Eviction Moratorium.

Q: What is Southeastern Legal Foundation doing to stop this unlawful and unconstitutional CDC Nationwide Eviction Moratorium?

A: SLF is currently evaluating all of its options, one of which includes litigation. The CDC Nationwide Eviction Moratorium expires on December 31, 2020, so we must move quickly because the eviction moratorium puts many residential property owners at risk of bankruptcy and foreclosure (which the CDC order does not stop and offers no relief from).

Read more about their conversation here.

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