The Future of the CDC Eviction Moratorium is Now Unclear

Morgan Handley and Sara RosenbaumOn May 5, 2021, in Alabama Association of Realtors v. Unites States Department of Health and Human Services, the United States District Court for the District of Columbia invalidated a nationwide eviction moratorium issued by the Centers for Disease Control in response to the COVID-19 pandemic. The court found that the CDC was without legal authority under the Public Health Service Act, § 361, to issue the moratorium. Section 361 of the Public Health Service Act allows the Secretary of HHS to “make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases” both across state lines and internationally. “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.”Prior to the CDC moratorium, Congress promulgated a time-limited eviction moratorium in the CARES Act, which expired in July 2020. The CDC then issued its own moratorium in September 2020 and has subsequently renewed it. Additionally, Congress renewed the CDC moratorium in the Consolidated Appropriations Act of 2021.Opponents of the moratorium sued in federal court, and the trial court’s decision will now undergo review at the appellate level.  Meanwhile, the decision has been stayed – that is, it has not yet gone into effect – and the moratorium remains in place.  In reviewing the moratorium, the Court began by scrutinizing the words of § 361 -- the starting point for judicial review of agency powers – and concluded that the words of § 361 itself clearly did not give the CDC the power to do what it did; in other words, the statute was not ambiguous about the limited scope of the CDC’s authority and the agency, therefore, had no power to interpret the law to give it the power to order a freeze on evictions. According to the court, the statute contemplates actions such as “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles” – types of public health actions dramatically different from barring evictions and more in keeping with classic public health efforts at keeping infected food and livestock away from public consumption.  The court reasoned that to buy CDC’s argument would give the agency nearly limitless authority to regulate conduct, something that would raise constitutional concerns. Nor, according to the court, did Congress ratify the CDC’s actions by including an extension of the moratorium in the American Rescue Plan – this was merely an acknowledgment of CDC’s actions.The Biden Justice Department plans to appeal, during which time the moratorium remains in effect.