Eviction moratoriums shouldn’t be left for the states

If there was any lingering doubt that the conservative majority in the Supreme Court is coming into its own, the 6-3 decision on Aug. 26 to lift the Centers for Disease Control and Prevention (CDC) eviction moratorium should dispel it. The same justices with a generous interpretation of executive privilege for the previous administration ruled that the Biden administration’s CDC exceeded its authority in its last-ditch effort to extend the eviction ban by more narrowly tailoring it to county COVID–19 transmission rates. The moratorium targeted millions of people who, if evicted, would have nowhere else to live but with relatives, in shelters, or seeking beds in other dense, congregant facilities.

Back in June, the court allowed the moratorium to stay in place for another month, with Congress having to authorize further extensions. After a failed effort by the slim Democratic majority in Congress to pass such a law, the court sided with the Alabama and Georgia Associations of Realtors, backed by the National Association of Realtors, to lift the ban.  

The new surge in delta variant infections, noteworthy precisely in the states of the plaintiffs where rent arrears are also burgeoning, was insufficient to convince the conservatives that a continuing moratorium on evictions would serve to quarantine and prevent further spreading. The court also reasoned that extending the moratorium could cause irreparable harm to landlords.

With Congress unable to respond legislatively, the court’s decision moved the struggle to protect millions of tenants to the states. Republican-controlled statehouses have been thwarting the president and the razor-thin Democratic majority in Congress and preempting power from Democratic-leaning cities and counties on many other issues as well. 

State and local governments are indeed authorized to impose eviction moratoria and other measures to ensure public health. By May 2020, 43 states had done so. However, as states have lifted quarantine, closures and other public health mandates, emergency measures began expiring. 

Faced with both federal and state expirations on Aug. 31, New York’s new Gov. Kathy Hochul (D) called a special session of the state legislature to extend its moratorium until Jan. 15, 2022.

Eviction moratoriums were crucial and effective stopgaps while the states roll out the two tranches of $46.5 billion in Emergency Rental Assistance (ERA) from the CARES Act and American Rescue Plan. Following last week’s court decision, cabinet members from Treasury, the Department of Housing and Urban Development (HUD) and the Department of Justice (DOJ) urged the extension of local eviction moratoriums, delay of evictions while rental aid applications were pending, and requiring landlords to apply for federal aid before enforcing evictions. Federal funds were authorized for tenant legal representation and eviction diversion, and lawyers are being enlisted to help tenants pro bono.  

Treasury officials repeatedly simplified the ERA program to encourage state and local governments to expedite access, especially by allowing self-attestation of COVID-related household income loss or risk of homelessness. 

Nevertheless, state expenditures of ERA have been sluggish and uneven. Over 450 state and local governments and agencies are disbursing ERA, but few of them had bureaucratic systems in place to do so. By the end of June, only 36 had spent even half of their money, and another 49, including New York state, had spent nothing. While spending was accelerating by early August, the total aid disbursed is about $5.1 billion — about 11 percent of $46 billion Congress allocated. Both Alabama and Georgia, tellingly, have spent less than 8 percent of their emergency rental assistance (ERA) funds. 

Some states quickly established programs, but others struggled to inform landlords and people at risk of losing their homes about it. In some places, the crush of demand and needed documentation overwhelmed staff and software, causing delays. It was often unclear which level of government — state, county, or city — was responsible for ERA. In some respects, the Treasury’s relaxation of rules has multiplied opportunities for confusion. Many places are scrambling because Treasury threatens to claw back ERA1 funds not obligated by Sept. 30 to reallocate to jurisdictions that have done so.

Places that outsourced the work of outreach, assistance, application and payments processing to private vendors and nonprofit associations were more successful at disbursing funds. Despite red states’ resistance to mask and vaccine mandates and extending unemployment insurance, not all of them have been foot-dragging with ERA expenditures. Santa Fe, N.M., pumped $7.65 million of CARES Act money in cash payments directly to area residents who lost income due to COVID-19, asking a very simple set of qualification questions and requiring minor documentation for approval. Similarly, the state of Kentucky, coordinating with Lexington and Louisville, pushed out rental assistance by allowing applications with income-based proxies in combination with self-attestation, which cut processing time in half. 

Indeed, among Treasury’s “promising practices” for ERA is landlord engagement. Yet there remains some debate about the extent of injury to landlords of eviction moratoriums. The ERA’s $46.5 billion was designed to pay landlords directly, compensating for their pandemic losses, albeit with some delay. Surely small landlords are highly dependent upon current rental income to pay utility, mortgage and tax bills, but their tenants often do not know about or qualify for the assistance. In contrast, most of the federal funds will go to large corporate landlords that are still profitable and responsible for most eviction filings. Taxpayer money should go to those who need it.

According to the Census’ latest Household Pulse Survey, 8 million or 14.5 percent of renter households are not current in rent payments. Of these, 2.2 million, or 27 percent are more than three months behind in their rent payments, and 1.3 million, or 16 percent say they are very likely to leave their home due to eviction in the next two months. At that time, only half a million had applied for and received rental assistance, while 1.6 million applied and were waiting for a response, and 678 thousand applied and were denied, many for administrative reasons. Almost half had lost employment income during the last four weeks. 

The ERA program erred in relying on state and local governments to create and administer their own programs. Renters must now rely on a patchwork of dissimilar state and local protections with various deadlines. The key lesson of the eviction moratorium and emergency rental assistance rollout is the importance of federal power to protect all vulnerable Americans in what is a widely shared public health and economic crisis.

Hilary Silver is professor of Sociology, International Affairs, and Public Policy and Public Administration at George Washington University.