The U.S. Centers for Disease Control and Prevention (CDC) is now exerting its authority into the residential housing market, starting with a nationwide moratorium on evictions due to COVID-19.
Issued with little fanfare in the late afternoon on September 4, the emergency order has embroiled the CDC in yet another controversy over the scope of its mission as a public health agency.
The CDC’s order aims to protect the nation’s estimated 40 million renters from being evicted from their homes through the end of the year, and perhaps longer.
“Evictions threaten to increase the spread of COVID-19 as they force people to move, often into close quarters in new shared housing settings with friends or family, or congregate in settings such as homeless shelters,” the order states. “In the context of a pandemic, evictions moratoria—like quarantine, isolation, and social distancing—can be an effective public health measure utilized to prevent the spread of communicable disease.”
No Public Comments
Contrary to the usual practice of federal agencies when issuing an order or regulation of this magnitude, the CDC solicited no public comments on its action but instead chose to present it to the public without warning—a fait accompli.
That may account for some of the problems that have arisen since the order was unveiled. Among other things, the order’s wording has sown confusion with tenants, landlords, and local housing courts alike. Tenants have complained the declaration is written in legalese that can be difficult to understand.
The CDC’s order applies to individuals earning less than $99,000 annually, or $198,000 for couples. Those seeking protection from eviction must sign a two-page CDC declaration attesting to the pandemic-related reasons why they cannot pay their rent.
The order also gives local judges room for interpretation, leading to uneven implementation of the CDC policy. Evictions continued in some cases, and in others, landlords have gone without rent payments for months. A CDC guidance released on October 9 said landlords could still file eviction notices for nonpayment even if cases could not be heard until the new year. The move appears to have done little to clear up the confusion surrounding the order. Landlords also fear that the eviction moratorium will be extended into 2021.
Although the order provides some protection to renters, it contains no remedy for landlords who must continue to pay mortgages and cover the costs of maintaining their properties, without the revenue stream of rent payments.
At an October 28 Competitive Enterprise Institute (CEI) panel, Caleb Kruckenberg, an attorney with the New Civil Liberties Alliance (NCLA), pointed to the lack of evidence supporting the CDC’s claim that the eviction order will stem the spread of COVID-19.
The only “data” currently available, according to Kruckenberg, are contained in a computer modeling simulation conducted by epidemiologist Michael Levy at the Perelman School of Medicine at the University of Pennsylvania. Released in September, it found that an eviction rate of 1 percent leads to a 5 to 10 percent higher incidence of COVID-19 infection, and one death for every 60 evictions. However, hard data, based on actual cases and deaths, are not available.
NCLA represents the plaintiffs in Richard Lee Brown, et. al. v. Secretary Alex Azar, et. al, which was filed on October 20 in the U.S. District Court for the Northern District of Georgia (the CDC is headquartered in Atlanta). Joining the NCLA in the suit is the National Apartment Association, which represents some 85,000 landlords responsible for 10 million rental units. Among other things, the suit argues the CDC lacks the statutory authority to issue an eviction moratorium and deny due process to property owners.
In a separate action, the Texas Supreme Court issued an emergency order in September clarifying that landlords can still seek an eviction by challenging the declaration provided by tenants under the CDC order. The Pacific Legal Foundation has also entered the fray, filing a suit against the CDC on behalf of Ohio landlords and property management companies.
Over the years, the CDC has tried to wield authority in not just housing but traffic accidents and gun control.
“With only four percent of its $7.3 billion annual budget allocated to new infectious diseases and global health threats, it left us ill-prepared to deal with the novel coronavirus,” stated Michelle Minton, a senior fellow at CEI, during the discussion.
Concerned that the agency is using the pandemic to justify aggregating even more power, including entering the realm of “social health,” Minton said the CDC “has every incentive to engage in a moral panic to expand its reach.”
CEI President Kent Lassman added to the point of a unilateral expansion of power.
“Will the CDC create a new Office of Housing?” Lassman asked.
Bonner R. Cohen, Ph.D., (email@example.com) is a senior fellow at the National Center for Public Policy Research.
“Repeal for Resilience: CDC Mission Creep to Mission Leap,” Competitive Enterprise Institute, October 28, 2020: https://cei.org/content/repeal-resilience-cdc-mission-creep-mission-leap
“Temporary Halt in Residential Evictions to Prevent the Further Spread of Covid-19,” U.S. Centers for Disease Control and Prevention,” September 4, 2020: https://www.federalregister.gov/documents/2020/09/04/2020-19654/temporary-halt-in-residential-evictions-to-prevent-the-further-spread-of-covid-19