Litigation likely against CDC’s nationwide eviction ban

While tenants' rights advocates applaud the Trump administration's federal eviction ban preventing landlords from removing nonpaying tenants with COVID-19 pandemic-related hardships through the end of 2020, many expect the action will face immediate court challenges.

The Centers for Disease Control and Prevention issued the ban under the Public Health Service Act to prevent the spread of disease, arguing evictions increase homelessness and homelessness could lead to an increase in the spread of disease.

"Housing stability helps protect public health because homelessness increases the likelihood of individuals moving into congregate settings, such as homeless shelters, which then puts individuals at higher risk to COVID-19," the order reads.

While the order does not apply to states providing moratoriums with the same or greater level of public-health protection tenants' rights advocate Deborah Thrope, deputy director of the National Housing Law Project, said the CDC eviction moratorium may be broader than many put in place at the state level.

"The CDC order is absolutely unprecedented," Thrope said in a phone interview Thursday. "It is an order pursuant to broad authority granted to the CDC in the event of a public health emergency."

However constitutional law specialist Josh Blackman of the South Texas College of Law Houston, said the CDC used a broad interpretation of the statute to institute the moratorium and is very skeptical it will survive constitutional challenges.

"First, this was not done by an act of Congress. It was done by an executive action and the question is: Did Congress give the CDC the power to take this action? I think the answer here is 'no' and I don't think this is even a close call," Blackman said.

"There is a statute that says the director of the CDC can take action to prevent the spread of disease and the statue gives examples: You can fumigate buildings and isolate people, you know, very localized small things," Blackman continued. "Here, you can create a national criminal offense that if anyone evicts a person, under this order, is subject to up to a year in jail. It's so bizarre to think that a statue about fumigating buildings and isolating and, you know, the slaughtering of animals, can authorize this vast new criminal penalty. It's stunning how broad it is."

If a tenant expects to earn no more than $99,000 in annual income in 2020, or no more than $198,000 if filing a joint tax return, or was not required to report any income in 2019 to the U.S. Internal Revenue Service, or received a stimulus check under the CARES Act, he or she does not need to pay rent until 2021, under the CDC's order.

While she too expects landlords and other property owners to immediately challenge it, Thrope said tenants nationwide will benefit from the CDC's moratorium in the interim while challenges make their way through the courts.

"With the inevitable challenges, it is important to note the first step would be to obtain a preliminary injunction," Thrope said. "To get a nationwide injunction, it's a pretty high bar, so it is important that advocates and tenants understand that this could protect millions of renters out there. So to the extent it's challenged, even if we see a challenge, we could be able to use this to people's advantage for some time, so it is important to understand that, yes, it might be challenged, but to get something nationwide is a higher bar than any sort of local preliminary injunction."

Both Thrope and Black agreed that since the order only postpones rental dues, and doesn't provide rent relief, it will not provide a permanent solution to the housing crisis facing at least 40 million renters.