CDC Eviction Moratorium Extension

August 11, 2021

On Aug. 3, the Centers for Disease Control and Prevention (CDC) announced that it would extend the federal eviction moratorium on a new, more limited basis through Oct. 3, 2021 after the ban lapsed on July 31. The temporary halt to residential evictions aims to protect renters from eviction and keep them out of congregate settings like homeless shelters.

The new ban on evictions covers parts of the U.S. that are experiencing what the CDC calls “substantial” and “high” spread of the coronavirus, defined by the agency as 50 to 100 cases per 100,000 people. The CDC cited the slow pace of state and local governments disbursing housing aid as justification for the new moratorium. It was issued after days of back-and-forth between the White House and Congressional Democrats over who was responsible for extending the moratorium.

In a statement released on Aug. 3, CDC Director Dr. Rochelle Walensky said:

“This moratorium is the right thing to do to keep people in their homes and out of congregate settings where covid-19 spreads. It is imperative that public health authorities act quickly to mitigate such an increase of evictions, which could increase the likelihood of new spikes in SARS-CoV-2 transmission. Such mass evictions and the attendant public health consequences would be very difficult to reverse.”

The Biden administration now appears to be focusing on distributing $46.5 billion in emergency rental assistance as fast as possible. The money was set aside in past pandemic relief packages, but states and cities have struggled getting the aid to renters due to slow rollouts and onerous documentation requirements. Only 6.5 percent of that money has been delivered, leaving renters in the lurch.

The CDC policy is facing a wealth of legal challenges leveled by landlords, property owners and trade associations as they push to recover properties from nonpaying tenants and as at least 8.8 million households find themselves behind on rent more than a year into the pandemic. As the latest eviction moratorium was about to end last week, the White House told Congress to act, while Congress called on the White House to act. The White House said it lacked the authority to extend the moratorium, after the Supreme Court determined the Biden Administration could not extend the previous moratorium eviction through executive action.

Most recently, a group of plaintiffs led by the National Apartment Association (a trade association of owners and managers of rental housing) filed a takings lawsuit against the original version of the CDC moratorium. They argue that the moratorium qualifies as a taking requiring “just compensation” under the Takings Clause of the Fifth Amendment. The cover sheet indicates they are seeking an estimated $26 billion in compensation payments. While this case was filed against the earlier version of the CDC moratorium, it applies just as readily to the new one. The two are very similar and the lawsuit against the original version is still valid, given that the plaintiffs are still entitled to seek compensation for losses incurred during the period when it was in effect.

Other courts nationwide have been split over the legality of the CDC’s order. Some federal courts have found that the CDC exceeded its authority when it banned evictions, while the Supreme Court narrowly upheld the order. In June, the Supreme Court decided in a 5-4 decision to allow the eviction ban to continue through the end of July. One of the justices voting in the majority, Justice Brett Kavanaugh, made clear that he would block any additional extensions unless there was “clear and specific congressional authorization.”

Additionally, the 6th U.S. Circuit Court of Appeals, which encompasses Tennessee, Kentucky, Michigan and Ohio, ruled in late July that CDC lacks the authority to issue pauses on eviction. The CDC order itself says it does not apply “to the extent its application is prohibited by federal court order.”

Recently, two Ohio court systems issued conflicting decisions regarding the new moratorium. In Franklin County, County Administrative Judge Ted Barrows said the moratorium wouldn’t be enforced based on last month’s 6th Circuit decision. But in Cuyahoga County, the new moratorium will be enforced. The district courts’ wide-ranging legal interpretations of the constitutional and statutory claims brought against the moratorium are leaving state courts with inconsistent guidance on how to handle eviction cases.

Clearly, the wave of litigation challenging the eviction moratorium issued by the CDC is resulting in disparate rulings across the country, prompting divergent applications and casting uncertainty on the moratorium’s future.