When the CDC’s Eviction Moratorium expired on July 31, 2021, Congress did not reauthorize it. Instead, on August 3, 2021, the CDC issued a new order temporarily halting residential evictions in communities with substantial or high levels of community transmission of COVID-19. 86 Fed. Reg. 43244 (Aug. 6, 2021). The order provided that a landlord, owner of a residential property, or other person with a legal right to evict may not evict a tenant who completes a specific financial declaration and otherwise qualifies under the CDC order. At the same time, several federal rental assistance programs exist to help tenants pay their rent, including the American Rescue Plan’s Homeowner Assistance Fund, and the Emergency Rental Assistance (ERA) programs, which are administered by the Treasury Department through states, local governments, territories, tribes and tribally designated housing entities, and the Department of Hawaiian Home Lands. The programs have been slow to start and have distributed approximately one-tenth of the allocated funds.
Realtor associations and rental property managers in Alabama and Georgia again sued to enjoin the CDC’s new (“second”) moratorium. The District Court entered judgment for the landlords, and the Supreme Court affirmed. The Supreme Court stated that the CDC’s eviction order was based on the Public Health Services Act, which provides in relevant part:
The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment 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. 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.
AAR, at 2, citing 42 U.S.C. § 264(a). The Court acknowledged the CDC’s authority to take action to prevent the interstate spread of disease by identifying, isolating, and destroying the disease itself. However, the Court stated that the CDC’s order was too indirect. It attempted to regulate evictions of a subset of tenants who might move from one state to another, with some smaller subset possibly being infected with COVID-19. The Supreme Court found that Congress could speak clearly when authorizing an agency to exercise the powers of vast economic and political significance that the CDC exercised in its order, but Congress had not done so. In addition, the CDC order “intruded” in an area that is the particular domain of state law: the landlord-tenant relationship. Absent clear Congressional authority, which was lacking, the CDC order was too broad and was properly struck down.
Following the Supreme Court’s ruling, the Secretary of the Treasury, Janet L. Yellen; the United States Attorney General, Merrick B. Garland; and the Secretary of the Department of Housing and Urban Development, Marcia L. Fudge, issued a letter to all State Governors, City Mayors, County Executives, and Chief Justices and State Court Administrators requesting help preventing unnecessary evictions during the pandemic. The letter requested that all evictions be stayed until the occupants have a chance to apply for rental assistance, permitting continued occupancy while a pool of federal money is accessed to pay the rent. The agencies also asked that: (i) states and localities enact eviction moratoriums during the remainder of the pandemic; (ii) landlords be required to apply for Emergency Rental Assistance funds before filing any eviction actions; (iii) eviction actions be stayed while the ERA application is pending; and (iv) that the ERA and American Rescue Plan State and Local Fiscal Recovery Funds be used to support the right to counsel and eviction diversion strategies. In short, the federal government wants tenants, landlords, and courts to ensure that federal funds are used to help renters before landlords pursue evictions for non-payment of rent.
Congress failed to act when the CDC’s eviction moratorium expired on July 31, 2021. It is unknown whether Congress will act now that the Supreme Court has again invited it to do so. Without Congressional action, there is no current federally imposed eviction moratorium. Landlords may proceed with residential evictions unless a state or local eviction moratorium applies. Nevertheless, landlords are encouraged to apply for ERA funds to satisfy their tenants’ rent obligations before they initiate an eviction action, which could prove to be a benefit to both the tenant and the landlord.