The CDC’s new eviction moratorium: Is it legal?

The Biden administration issued a new eviction moratorium on Aug. 3, heeding calls from housing advocates to help potentially millions of Americans who are behind on their rent. But the move risks an intervention by the courts.

The order, issued by the Centers for Disease Control and Prevention, was crafted in a way that doesn’t directly contravene the Supreme Court’s previous warning but which will likely be challenged in court anyway.

The CDC order is new, rather than extending an existing order. It also targets areas with significant community spread of the coronavirus, rather than being universal in scope.

Both factors could provide some legal wiggle room for the administration in future court battles. The CDC order leans heavily on the need to protect the public health from the increasing COVID-19 case rates from the delta variant, a more contagious version of the coronavirus.

"The eviction moratorium allows additional time for rent relief to reach renters and to further increase vaccination rates," the CDC said in a statement. "In the context of a pandemic, eviction moratoria — like quarantine, isolation, and social distancing — can be an effective public health measure utilized to prevent the spread of communicable disease. Eviction moratoria facilitate self-isolation and self-quarantine by people who become ill or who are at risk of transmitting COVID-19 by keeping people out of congregate settings and in their own homes."

Federal officials were left to act after the House, expecting opposition from Republicans in the Senate, adjourned without passing legislation to extend the eviction moratorium. The Supreme Court had indicated in June that congressional action was required to extend the moratorium.

Time will tell whether the courts let the CDC move stand. Here’s a look at the legal prospects for the administration’s new approach. 

The CDC implemented the initial moratorium on evictions in September 2020 and extended it three times. When it expired on July 31, Biden called on Congress to approve an extension. However, facing near-certain rejection in the Senate, Pelosi and her top Democratic lieutenants said it was the executive branch’s job to take unilateral action.

Initially, the Biden White House said it couldn’t do that. It cited the Supreme Court’s disposition of lawsuits that had challenged the original moratorium as an overreach of federal power. 

The most recent ruling came June 29 in a case filed by the Alabama Realtors Association. The justices were addressing a motion to overturn a lower court’s stay order. While this ruling was procedural and did not officially address the merits of the case, the court’s statement was transparent about where a majority of justices stood.

Five justices — the three more liberal justices, plus Chief Justice John Roberts and Associate Justice Brett Kavanaugh — supported keeping the moratorium in place. However, Kavanaugh emphasized in his appended statement that he agreed to continuing the moratorium only because it was about to end. As a matter of law, Kavanaugh wrote, he thought extending the moratorium further was unconstitutional.

"In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31," Kavanaugh wrote.

While Kavanaugh’s statement did not carry the same weight as a ruling signed by a majority of justices, legal experts said it was a clear sign of where the court stood.

"Most federal agencies would be reluctant to ignore or proceed in the face of such an indication," Jessica Levinson, a professor at Loyola Law School, told us. 

The new CDC order is essentially a workaround to the Supreme Court statement. It’s something of a long shot, but because it hasn’t been addressed yet by the courts, it can be taken up in the judicial branch on its own merits. 

The CDC document is careful to note that it is a "new order" and that it is targeted to communities with rapid spread of the coronavirus, rather than the nation as a whole — although estimates suggest that it could still cover up to 90% of the U.S. population. It would expire Oct. 3, with the possibility of extensions based on public health factors.

At an Aug. 3 news conference, Biden plainly acknowledged that the Supreme Court’s stance had shaped the crafting of the new order. "Any call for a moratorium based on the Supreme Court’s recent decision is likely to face obstacles," he said.

The White House is trying to buy time to achieve its goal of distributing more aid to renters. Funds to pay renters’ costs have already been approved by Congress, but state and local officials have been slow to distribute it. 

"We have billions of dollars that were given to states to provide for rent and utilities for those people who can't afford to stay in their homes," Biden said at the news conference. "And so we’re urging them to distribute those funds to the landlords. I believe that would take care of the vast majority of what needs to be done to keep people in their apartments now."

Essentially, the White House plans to create this extra time by leveraging the lag between its ability to issue a policy and the judicial branch’s ability to strike it down.

"By the time it gets litigated, it will probably give some additional time while we're getting that $45 billion out to people who are, in fact, behind in the rent and don't have the money," Biden said at the news conference.

Biden "hopes that people and the economy will be in better shape by the time courts resolve the legality of the CDC’s new effort," said Carl Tobias, a law professor at the University of Richmond.

The most that can be said about the new order is that its legality is unresolved, assuming a plaintiff moves to challenge it (which hadn’t happened as of this story’s publication). The new order might eventually be ruled permissible, perhaps based on the worsened public health situation caused by the aggressive delta coronavirus variant. 

The Supreme Court’s previously articulated stance makes this unlikely, legal experts said. But until a court blocks the order’s implementation either temporarily or permanently, it will be in force. 

Issuing a new and differently structured moratorium, as the White House has done, "would tend to support the argument that the old source of authority was inadequate, said Jonathan H. Adler, a law professor at Case Western Reserve University.