Millions of renters at risk as federal judge strikes down CDC eviction moratorium

Update: On May 14, a federal court extended a temporary stay on this ruling. That means that the CDC moratorium on evictions will stay in effect while the case is being appealed.

This week, a federal judge struck down the national eviction moratorium ordered by the Centers for Disease Control and Prevention (CDC). Millions of low-income renters have been protected from eviction during the pandemic because of the CDC’s halt on evictions. These struggling families now risk losing their homes.

The ruling was made by Judge Dabney Friedrich of the U.S. District Court for the District of Columbia. Judge Friedrich is a Trump appointee who was confirmed by the Senate in 2017. 

The lead plaintiff is the Alabama Association of Realtors, who claimed the federal government overstepped its reach getting involved in the landlord-tenant relationship.

The Alabama Realtors were suing the Department of Health and Human Services (HHS), which oversees the work of the CDC. The eviction moratorium was ordered to slow the spread of coronavirus at the height of the pandemic. 

With millions of people out of work, a wave of evictions loomed as people could not pay rent. Having so many people doubling up or on the streets would spread coronavirus further and faster.

The CDC cited its authority under the Public Health Services Act (PHSA) to take any actions necessary to slow the spread of infectious diseases. Section 361 of the PHSA empowers the HHS Secretary to “make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases either internationally or between states.”

Judge Friedrich ruled for the plaintiffs, saying that HHS had exceeded its authority under the Public Health Service Act. She said that the law listed several examples of interventions that would be allowed, and halting evictions was not among them. 

The judge noted that Section 361 of the PHSA allowed the Secretary discretion in making regulations to fight the spread of disease. But she said the PHSA gave specific examples of actions the Secretary is authorized to take. 

For the purpose of carrying out such regulations, Section 361 of the PHSA says the Secretary is authorized to “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 judge also pointed out in limited circumstances allows HHS to authorize detention, examination and quarantine of individuals showing evidence of infection. However, Judge Friedrich ruled that halting evictions went beyond the scope of any of the sample actions listed in the PHSA. In her summary, Judge Friedrich wrote:

“In sum, the Public Health Service Act authorizes the Department to combat the spread of disease through a range of measures, but these measures plainly do not encompass the nationwide eviction moratorium set forth in the CDC order. Thus, the Department has exceeded the authority in Section 361 of the Public Health Service Act.”

There have been earlier rulings against the CDC eviction moratorium, including one by a federal district judge in Texas. The ruling in Texas, however, was confined to the parties in the case. Judge Friedrich’s ruling, though, strikes down the CDC’s eviction moratorium all around the country.

Judge Friedrich’s ruling is based on a very literal and selective reading of the PHSA. The law was passed in 1944. The law specifically includes broad language authorizing the Secretary to take other measures he or she deems necessary besides what is listed. The point is for the federal government to be flexible when responding to unforeseen future emergencies.

Judge Friedrich also writes that Congress can authorize action by HHS and the CDC under the authority of the PHSA. The CDC ordered the eviction moratorium in early September, 2020, and it was set to expire on December 31, 2020, When Congress passed the appropriations for FY 2021 in December, it also extended the CDC eviction moratorium through January 31, 2021. 

President Biden authorized the CDC to extend the moratorium as one of his first acts in office, and it now protects renters through June 30. The judge writes that since Congress set an expiration date of January 31, the administration no longer has authority to extend it further.

The Department of Justice (DOJ) has already filed an appeal with the District of Columbia Circuit Court of Appeals. DOJ has also requested a stay of Judge Friedrich’s order to avoid a wave of evictions around the country.