Is the eviction moratorium legal?

As the coronavirus’s delta variant ravages the country, landlords continue to find themselves pitted against the Biden administration and millions of tenants over the ongoing federal moratorium on evictions due to the pandemic.

According to a recent U.S. Census survey, around 6.5 million households are behind on rent, with nearly 72 percent of them owing so-called “mom and pop” landlords who own 10 or fewer properties. Thirty percent of these small business owners — who run the majority of rental properties in the United States — earn under $90,000 a year. One Dallas property owner of three apartment buildings who is now $250,000 in debt told Politico: “We’re doing everything the right way. But we’re drowning.” While policymakers are caught in a lose-lose game of balancing the needs of struggling tenants with those of struggling landlords, a threshold question continues to cause confusion: Is the eviction moratorium even legal? 

The bottom line is: Probably yes. The most potent legal argument against federal eviction bans is that only Congress can enact them — not the president. The problem is a nonpartisan one, as both Presidents Trump and Biden used executive power to impose eviction moratoriums when Congress failed to act.

The eviction moratoriums encompass a series of laws from different sources: Congress, the Office of the President, the Centers for Disease Control and Prevention (CDC), state governments and municipalities. Initially, in March 2020, the CARES Act imposed a temporary moratorium on evictions of tenants who participate in federal housing assistance programs or inhabit properties financed with federally-backed loans. After the statute expired on July 24, 2020, state and local governments filled the resulting void by enacting their own eviction prevention laws, but tenant protections varied across the country.

On Aug. 8 of last year, Trump issued executive order 13946, stating that “[w]ith the failure of Congress to act, my Administration must do all it can to help vulnerable populations stay in their homes in the midst of this pandemic.” He directed the secretary of Health and Human Services and the Centers for Disease Control and Prevention (CDC) to “take action, as appropriate and consistent with applicable law.” Accordingly, on Sept. 4, the CDC issued a nationwide order “temporarily halt[ing] residential evictions to prevent the further spread of COVID-19.” It expired on Dec. 21, 2020. Congress extended the moratorium through Jan. 21, 2021, in an appropriations bill.

Since then, Congress hasn’t taken other steps to extend the eviction moratorium, although it did appropriate $25 billion to assist households that are unable to pay rent last December, and another $21.55 billion under the American Rescue Plan Act, which passed on March 11, 2021. The funds went directly to state and local governments, which were supposed to pass them on to struggling tenants. As of late July, however, only about $3 billion had been actually distributed. 

The CDC issued new orders extending its administrative eviction moratorium through March 31, 2021, then until June 30, 2021, and then again until July 31, 2021. The CDC’s authority to issue these bans was challenged in federal court and appealed all the way to the U.S. Supreme Court, which refused to disturb it in a terse decision issued on June 29, 2021. In a concurring opinion, Justice Brett Kavanaugh shared his personal view that the CDC had “exceeded its existing statutory authority by issuing a nationwide eviction moratorium,” but sided with the majority given that the latest order was to expire on July 31. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett would have halted the CDC order, presumably on the rationale that only Congress can take such action. Then, on Aug. 3, 2021, the CDC issued a revised order that more narrowly applies only to U.S. counties experiencing “substantial or high levels of community transmission levels” of COVID-19, which covers about 80 percent of counties and 90 percent of renters. It expires on Oct. 3, 2021.

If states distribute the billions in congressionally appropriated tenant funds between now and Oct. 3, the problem could substantially dissipate. In the interim, Biden didn’t do himself any favors by suggesting that the “bulk” of legal scholars believe the newest CDC order is “not likely to pass constitutional muster.” As I wrote back in March 2020, the federal government has significant power to manage pandemics, both as a matter of the U.S. Constitution and statutory law. In 1905, the Supreme Court in Jacobson v. Massachusetts upheld a state’s mandatory vaccine law, over an individual’s constitutional objections, “to protect the public health and the public safety.” Although scholars debate both the reasoning and reach of Jacobs, it remains the most relevant law of the land.

In 1944, moreover, Congress gave the president vast power to respond to a national pandemic in the Public Health Service Act if he determines that states aren’t doing enough. In its current form, the statute gives the CDC director the authority “to make and enforce such regulations as . . . are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” It adds that the director “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.” The CDC relies on this language to justify its eviction ban. Lawyers and judges might debate whether the words “any other measures” are broad enough to cover the CDC’s action, but the question is hardly a legal slam dunk. By no means were either the Trump or Biden administrations plainly off-the-mark in having the CDC fill the void left by Congress once its statutory ban expired in January.

To be sure, those who argue that the executive branch has amassed too much power since the birth of our constitutional government in 1787 are probably correct. But Congress has willingly handed over its legislative powers to presidents for decades, and the Supreme Court has for the most part treated those hand-offs as comfortably constitutional. The readiest answer to the tug-of-war over eviction moratoriums is for states to distribute the billions that Congress already appropriated to help struggling families with rent — not to wrestle with constitutional precedent.

Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books “How to Read the Constitution — and Why” and “What You Need to Know About Voting — and Why.” Follow her on Twitter and Instagram @kimwehle.