Looking Ahead: Housing

Preventing an Epidemic of Eviction During COVID-19: What Are the Limits?

Shortly before COVID-19 arrived, 10.9 million renter households — 25% of all renter households — were spending over 50% of their income on rent each month. Before the pandemic over 61 million eviction cases were filed annually. Last year, policy makers quickly saw that the public health crisis could turn an existing housing and eviction crisis into an unprecedented catastrophe. The challenge became how to maintain shelter for renters during a pandemic and keep people in their homes to prevent the spread of the virus.

Advocates and policy makers soon settled on a strategy to prevent the potential devastation, halting evictions temporarily. The first nationwide eviction moratorium was included in the comprehensive federal stimulus package enacted in response to COVID-19, set to expire on July 25, 2020. Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Pub. L. No. 116-136, 134 Stat. 281 (2020). 15 U.S.C. § 9058. It was limited to certain “covered housing,” however, such as housing financed using Low-Income Housing Tax Credits or housing with a federally backed mortgage loan. 15 U.S.C. § 9058(a)(2).

In summer 2020, as fears for a fall and winter COVID-19 surge grew, the CARES Act and many state moratoria expired. The Centers for Disease Control and Prevention (CDC) issued a national eviction moratorium in early September as a public health measure to mitigate the spread and effect of COVID-19. Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID-19, 85 Fed. Reg. 55,292 (Sep. 4, 2020). In contrast to the CARES Act, the CDC eviction halt applied to landlords more broadly. Id. Although the CDC extended the moratorium through the first half of 2021, it expired in July.

The CDC subsequently issued a moratorium tailored to the changing conditions of the pandemic, which included increasing vaccination rates, more contagious variants, and local community transmission. Temporary Halt in Residential Evictions in Communities With Substantial or High Levels of Community Transmission of COVID–19 To Prevent the Further Spread of COVID–19, 86 Fed. Reg. 43,244 (August 6, 2021). The August order applies only to regions of the country with “substantial or high levels of community transmission of COVID-19” to prevent further spread. Id. at 43,250. The new moratorium protects renters for up to two months, through October 3, 2021, but renters lose protections once their community is no longer experiencing a high or substantial level of community transmission. Id. at 43,247-49. The order provides immediate relief for an estimated 80% of all counties in the United States, and 90% of all renters. Id. at 43,246. It will also give state and local governments more time to distribute emergency rental assistance to households that need it. Id. at 43,250.

The CDC moratoriums have been the subject of numerous legal challenges. One of these challenges, Alabama Ass’n of Realtors v. United States Dep’t of Health & Hum. Servs., presented the Supreme Court with an opportunity to share its views on the constitutionality of the order without directly addressing the merits. The plaintiffs argued that the CDC greatly exceeded its statutory and constitutional power. See Alabama Ass’n of Realtors v. United States Dep’t of Health & Hum. Servs., No. 20-CV-3377 (DLF), 2021 WL 1779282, at *2 (D.D.C. May 5, 2021). The federal government defended the order, saying it was an exercise of the “legislative powers” granted to Congress and delegated to the CDC. Id. at *6. The United States District Court for the District of Columbia held that the plain language of the Public Health Service Act “unambiguously forecloses the nationwide eviction moratorium,” and set aside the CDC Order. Id. at *10. However, the district court subsequently granted the CDC’s request to stay enforcement of the summary judgment order pending appeal. Alabama Ass’n of Realtors, 2021 WL 1946376 (D.D.C. May 14, 2021).

The D.C. Circuit Court of Appeals denied the realtors association’s emergency appeal to vacate the stay. Alabama Ass’n of Realtors v. United States Dep’t of Health & Hum. Servs., No. 21-5093, 2021 WL 2221646, at *1 (D.C. Cir. June 2, 2021). The realtors association then asked the Supreme Court to review the issue. Chief Justice Roberts and Justices Kagan, Breyer, and Sotomayor voted to leave the stay in place, while Justices Thomas, Alito, Gorsuch, and Barrett voted to grant the stay. Alabama Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2320-21 (2021). Justice Kavanaugh, in a concurrence, agreed to keep the stay in place, but signaled his disapproval of the moratorium, writing that the CDC “exceeded its existing statutory authority” and that in his view “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.” Id.

After the CDC issued its new moratorium in early August, the plaintiffs returned to the district court to challenge the new moratorium and to enforce the court’s previous order. Emergency Motion To Enforce The Supreme Court’s Ruling And To Vacate The Stay Pending Appeal, Alabama Association of Realtors v. United States Dep't of Health & Hum. Servs., No. 20-CV-3377 (DLF) (Aug. 4, 2021) (ECF No. 67). In August, the district court denied the motion, holding that the D.C. Circuit and Supreme Court’s rulings upholding the stay applied to the new moratorium. The court of appeals affirmed this ruling. The Supreme Court — in an unsigned decision — vacated the stay and held that the moratorium is unlawful because the CDC exceeded its statutory authority. Justices Breyer, Sotomayor, and Kagen dissented, writing that “the public interest is not favored by the spread of disease or a court’s second-guessing of the CDC’s judgment.”

Several district courts have also taken up the question of whether the CDC’s moratoriums are lawful, coming to conflicting conclusions — setting the table for similar questions to reach the Supreme Court. So far, the Eleventh Circuit affirmed the Northern District of Georgia’s denial of a motion for a preliminary injunction to block the initial moratorium, but did not weigh in on the merits. Brown v. Sec’y, U.S. Dep’t of Health & Hum. Servs., 2021 WL 2944379, at *6 (11th Cir. July 14, 2021). The Sixth Circuit denied the CDC’s request for an emergency stay pending appeal of a district court decision that the CDC exceeded its authority when it issued the initial moratorium. Tiger Lily, LLC v. U.S. Dep’t of Housing and Urban Development, 992 F.3d 518 (6th Cir. 2021). Appeals from other district court cases are now pending in the Fifth and Sixth Circuits. Terkel v. Centers for Disease Control & Prevention, 2021 WL 742877 (E.D. Tex. Feb. 25, 2021), appeal docketed, 21-40137 (5th Cir. 2021 Mar. 3, 2021). Skyworks, Ltd. v. Centers for Disease Control & Prevention, 2021 WL 911720 (N.D. Ohio 2021), appeal docketed, 21-3563 (6th Cir. June 23, 2021). Like the Alabama Ass’n of Realtors case, we may see the Court address these cases on an emergency basis, most likely with similar results.

States also adopted halts on evictions. States used a range of methods throughout the pandemic to balance public health and economic needs, including prohibiting landlords from issuing eviction notices before court filing; preventing court filing of eviction cases and staying proceedings but allowing filings of evictions. However, many of these statutes and ordinances have expired and were not renewed.

State eviction moratoriums remain in effect in just eight places: California, Hawaii, Illinois, New Jersey, New Mexico, New York, Washington, and the District of Columbia. These moratoriums continue to face ongoing legal challenges. For example, in February 2021 individual landlords and a landlord association filed suit alleging that New York’s moratorium violates property owners’ rights to due process and free speech. Chrysafis v. Marks, No. 21-CV-2516 (GRB), 2021 WL 2405802 (E.D.N.Y. April 14, 2021). The district court declined the plaintiffs’ request to enjoin the moratorium and dismissed the case in its entirety. Id. at *15. The Second Circuit denied the plaintiffs’ application for an emergency injunction pending appeal. Chrysafis v. Marks, No. 21-1493 (2nd Cir. July 26, 2021) (Doc. 89). On an emergency application, the Supreme Court granted the landlord’s request in part, blocking enforcement of the part of the moratorium that allowed tenants to self-certify that they are experiencing economic hardship due to the pandemic, but leaving the rest of the law in place. Chrysafis v. Marks, No. 21A8, 549 U.S. ___ (2021). New York’s moratorium will expire on August 31.

Susan Ann Silverstein
ssilverstein@aarp.org

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