The CDC Keeps Extending Its Illegal Eviction Ban

The Centers for Disease Control and Prevention (CDC) is extending its controversial eviction moratorium, which was set to expire Wednesday, through the end of June.

The order, signed by CDC Director Rochelle Walensky, prevents tenants earning up to $99,000 ($198,000 for joint filers) from being evicted for non-payment of rent, provided they sign written declarations saying, among other things, that they’ve lost income or had unexpected medical bills, that they have made every effort to acquire government assistance, and that their eviction could compel them to move into a homeless shelter or other crowded shared living space.

The order was first imposed under the Trump administration, extended by Congress in late December, and renewed again by the Biden administration in January.

Renters can still be evicted under the CDC order for engaging in on-premises criminal activity, for threatening the health and safety of other residents, for damaging the property, for violating building codes, or for violating lease terms other than not paying rent.

Through each extension, the moratorium’s specifics have remained largely unchanged from the Trump administration’s initial version. That has aggravated some housing advocates who, while supportive of the policy, would like to see it expanded to cover more types of evictions and enforced more robustly.

“While the Biden administration is well aware of the shortcomings in the moratorium order that allow some evictions to proceed during the pandemic, the CDC director did not correct them,” declared the National Low Income Housing Coalition (NLIHC). “She simply extended President Trump’s original order, leaving the loopholes and flaws in place, a disappointing decision that will result in more harmful evictions during the pandemic.”

On the other side of the issue, landlords are dismayed at a moratorium that prevents them from reclaiming their property from nonpaying tenants.

“My clients are now in a position where we’ve had the eviction moratorium since September. It will go through June at least, and could be extended again,” says Caleb Kruckenberg, a lawyer at the New Civil Liberties Alliance (NCLA), which is suing the CDC on behalf of several property owners. “For some of my clients, it will be 18 months since they’ve had tenants who pay rent. It was unsustainable from the beginning.”

The CDC has justified its eviction ban by pointing to public health rules that say the agency can take measures “reasonably necessary” to prevent the interstate spread of communicable disease.

Because evicted tenants might move into crowded living arrangements, the agency argues, a moratorium is needed to mitigate the spread of the pandemic. Walensky’s order stresses that the eviction moratorium remains necessary in spite of falling deaths and the rollout of vaccines.

“It is important to note that despite higher rates of vaccine coverage, the simultaneous roll-back of community mitigation efforts may continue to expose vulnerable populations, such as those targeted in this Order, to higher-than average COVID-19 rates,” it says.

“Every time now the CDC has extended it, it has the feeling of just making excuses. Yes, infection rates are down. Yes, people are being vaccinated. Yet for some inexplicable reason we have to ruin the livelihood of property owners,” says Kruckenberg.

Two separate studies have found that state-level eviction moratoriums have helped suppress COVID-19 infections and deaths while in effect. But neither of those studies measure actual evictions or levels of economic or social activity. That leaves open the possibility that eviction moratoriums are being imposed in places where people are already taking more precautions and are being lifted in states where people are less cautious, and it’s that difference in behavior that’s responsible for higher levels of transmission and death.

The CDC’s new order says that mass evictions would “inevitably” occur if the moratorium is lifted. One commonly cited estimate from last summer put the number of tenants at risk of eviction at 40 million. A recent Census Bureau Household Pulse Survey found 8.3 million Americans were behind on their rent, and about 17 percent of those people said they were “very likely” to be evicted.

“I think that’s like using the number of drivers to say how many people are at risk of dying in a car accident,” says Salim Furth, a housing researcher at George Mason University’s Mercatus Center. “Yes, everyone who gets in a car is at risk of an accident, but that doesn’t give you any sense of the number of people who will actually die in a car accident today.”

Despite ubiquitous warnings over the past year about a coming wave of evictions, the actual number that have taken place during windows where no moratoriums have been in effect has been lower than average almost everywhere.

The difficulty of finding a new, reliable tenant when so many people are out of work means landlords have little to gain from evicting previously good tenants who’ve fallen behind on rent during the pandemic, says Furth.

An analysis published today by the rental listing website Zillow found that actual evictions have come in far below predicted evictions in states where data are available.

The approval of $46.55 billion in rental assistance during the pandemic would, one would think, lessen the risk of eviction for renters behind on their bills even more.

So far, courts have been split on the legality of the CDC’s eviction moratorium.

Three U.S. district courts—in Tennessee, Ohio, and Texas—have rejected the CDC’s power grab in ruling that the agency’s moratorium illegal. The Tennessee and Ohio decisions argue the agency went beyond the power given to it by Congress in banning evictions. The U.S. district court decision in Texas went further by saying that not even Congress had the power to impose an interstate eviction moratorium.

Two other district courts—one in Louisiana, the other in Georgia in the case brought by NCLA—have upheld the CDC’s eviction ban.

Despite a handful of district-level rulings striking down the moratorium, the CDC’s order is still enforceable in most of the country, says Ilya Somin, a law professor at George Mason University and contributor to The Volokh Conspiracy (which is hosted by Reason).

“None of the three decisions striking it down have issued a nationwide injunction, so all of them apply probably only to the parties in their case, and possibly they’ll apply to other cases located in those districts,” he tells Reason. “The order does remain enforceable throughout the country unless and until there is some kind of nationwide injunction or ruling of the Supreme Court.”

The Biden administration’s extension of the order ensures the legal controversy will continue well into the summer.

Bonus video: the victims of New York’s eviction moratorium.