This post originally appeared at the Volokh Conspiracy.
The Centers for Disease Control's repeatedly extended nationwide moratorium on evictions expired on July 31. The Biden administration initially chose not to try to extend it again, because of a series of defeats in court, as well as indications that a majority of Supreme Court justices believe the moratorium was illegal and would so rule if the issue came before them.
Earlier today, however, the CDC issued a modified new version of the moratorium that applies "only" to areas where there are "substantial [or] high levels of community transmission" of the coronavirus. As the Washington Post notes, that currently includes some 90% of the United States. The new moratorium is scheduled to expire October 3. But, like the old one (which was repeatedly extended by the Biden administration, after first being adopted under Trump in September 2020), it could potentially be extended again.
The new moratorium is an only slightly scaled down version of the old. As such, it has virtually all the same flaws and legal vulnerabilities. Pretty much every legal argument raised against the original moratorium—and accepted in numerous judicial rulings against it—also applies to the new one. Meet the new moratorium, same as the old moratorium!
Most notably, the new version still must rely on a legal rationale giving the CDC virtually unlimited power to shut down any activity that might potentially facilitate the spread of disease in any way. What I wrote back in September 2020 about the original Trump-era moratorium applies to this one, too:
This broad interpretation of the regulation [and statute supposedly authorizing the moratorium] would give the executive the power to restrict almost any type of activity. Pretty much any economic transaction or movement of people and goods could potentially spread disease in some way. Nor is that authority limited to particularly deadly diseases such as Covid-19. It could just as readily apply to virtually any other communicable disease, such as the flu or even the common cold.
Every year, thousands of people die because of the flu, and restrictions on mobility or on economic and social activity could be seen as "reasonable" ways to limit its spread. 42 CFR Section 70.1 (on which the definition of disease in Section 70.2 is based) in fact defines "communicable diseases" as "illnesses due to infectious agents or their toxic products, which may be transmitted from a reservoir to a susceptible host either directly as from an infected person or animal or indirectly through the agency of an intermediate plant or animal host, vector, or the inanimate environment." Notice that this applies to any disease spread by "infectious agents," regardless of severity. The flu and the common cold clearly qualify!
Six of the nine court decisions ruling on the legality of the original moratorium have gone against it. That doesn't count a recent Eleventh Circuit ruling, in which a 2-1 majority refused to issue a preliminary injunction blocking the moratorium, but all three judges strongly suggested they believe the CDC order is illegal. Most of these rulings have singled out the issue of unlimited power, noting that it is both problematic as a matter of statutory interpretation and likely unconstitutional, because it violates "nonedelegation" constraints on the extent to which Congress is permitted to delegated its authority to the executive branch. The Sixth Circuit, for example, noted that "Under that interpretation [of the law advocated by the executive], the CDC can do anything it can conceive of to prevent the spread of disease. That reading would grant the CDC director near–dictatorial power for the duration of the pandemic, with authority to shut down entire industries as freely as she could ban evictions."
The limitation of the moratorium to areas with "substantial" or "high" Covid transmission does little to fix this problem. Nothing in the logic of the government's position suggests that the moratorium has to be limited in this way. As I have pointed out before, the authorizing statute imposes no limitations based on the extent of disease spread in a given area. The only limits, if any, are on the types of actions the CDC can take to confine the spread. Thus, if the CDC can impose an eviction moratorium in areas with "substantial" or greater transmission, it can do so anywhere or everywhere.
I am far from the only person who believes the new moratorium is legally dubious. President Biden appears to agree:
In remarks to reporters shortly before the CDC made its announcement, Biden acknowledged that the move was likely to be subject to court challenge and appeared to express doubt about the legality of the move. He even said scholars he consulted felt the measure was probably not constitutional.
"I have been informed [the CDC is] about to make a judgment as to potential other options. Whether that option will pass constitutional measure with this administration, I can't tell you. I don't know," Biden said. "The bulk of the constitutional scholarship says that it's not likely to pass constitutional muster. … But there are several key scholars who think that it may and it's worth the effort."
For what it's worth, I agree with "[t]he bulk of constitutional scholarship," as the president described it. This order was illegal when first adopted under Trump, it was still illegal when Biden revived it, and a coat of slightly nicer lipstick can't change the fundamental nature of the pig now.
In one respect, the new moratorium may be on even weaker legal ground than the old. In its defense of the original moratorium, the federal government argued, among other things, that Congress had acquiesced in the CDC's claim of boundless authority, thereby legalizing it. This argument, already rejected by most judges who considered it, will be even harder to defend after the events of the last few days, when congressional Democratic leaders rebuffed the Biden administration's pleas to pass legislation extending the moratorium, because they didn't have the votes to do so in either the House or the Senate.
The new CDC policy has a variety of other flaws, as well. Like its predecessor, it is justified on the basis of severely flawed studies. It also fails to consider the likelihood that imposing eviction moratoria in the midst of crisis will set a dangerous precedent, and reduce the supply of housing over time, or increase its costs—thereby making vulnerable tenants worse off, rather than better.
The Biden administration also seems not to have given adequate thought to the dangers of allowing future administrations (including Republican ones!) to wield such broad power. If you trust Biden with the authority to shut down virtually any activity at any time, you may not feel the same way about Donald Trump, Josh Hawley, Ted Cruz, or other potential once and future GOP presidents.
We will likely soon see how well the revised eviction moratorium holds up in court. It's a safe bet to predict that most, if not all, the ongoing lawsuits against the original version of the moratorium will, with slight modifications, continue against the new one.
NOTE: The plaintiffs in some of the lawsuits against the original eviction moratorium are represented by the Pacific Legal Foundation, where my wife works (though she is not part of the litigation team handling the issue). I myself have played a minor (unpaid) role in advising PLF on the issues involved.
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