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New Court Case Invalidates the CDC’s Eviction Order

“Without question, effective pandemic response depends on the judgment of reliable science—not political science. But that obvious truism does not empower agencies or their officials to exceed the mandate Congress gives them.”

We are finally seeing a light at the end of the COVID tunnel: Vaccines should be widely available by the end of May. Americans will hopefully return to work, schools will soon reopen and the American Rescue Plan Act of 2021 will provide trillions of dollars in much needed relief to individuals, businesses, and state and local governments. Does this mean that the federal government will finally end the federal eviction moratorium set to expire at the end of the month? We hope that recent legal developments will weigh on their decision.

The National Apartment Association (NAA) is pleased to see two legal decisions shine a light on the inherent flaws of the U.S. Centers for Disease Control and Prevention’s (CDC) eviction order. On March 10,  Judge J. Philip Calabrese of the U.S. District Court, Northern District of Ohio (Eastern Division) ruled in Skyworks, LTD., et al. v. CDC that the CDC’s eviction order is unlawful and exceeds the agency’s statutory authority.

Focusing his analysis on the court’s interpretation of Section 361 of the Public Health Service Act (42 U.S.C. § 264), in his Opinion and Order invalidating the CDC’s eviction order, Judge Calabrese stated that “[w]ithout question, effective pandemic response depends on the judgment of reliable science—not political science. But that obvious truism does not empower agencies or their officials to exceed the mandate Congress gives them.” This was welcome news, as NAA participated in the case as amici (“friend of the court”) in support of the challenge brought forth by plaintiffs and applauds the court’s ruling.

A second federal court also ruled that the CDC’s eviction order is unlawful, and for completely different reasons. On February 25, in a constitutional challenge to the eviction order, Judge J. Campbell Barker of the U.S. District Court, East Texas ruled in Lauren Terkel et al. v. CDC that the CDC’s eviction order was unconstitutional. Judge Barker argued that “although the COVID-19 pandemic persists, so does the Constitution,” ruling that the federal government's Article I power to regulate interstate commerce and enact laws necessary and proper to that end does not include the power for the federal government to impose an eviction moratorium.

Unfortunately, the Department of Justice (DOJ) continues to insist that these rulings only apply to the parties to the case. DOJ announced that they already filed to appeal the Terkel decision and emphasized its disagreement with the court’s ruling in Skyworks.

With yet another federal court siding with rental housing providers, NAA strongly encourages the current administration to take these rulings into consideration and not extend the CDC eviction moratorium any further and urges the CDC to formally rescind and cease enforcement of the order immediately.

NAA continues its federal advocacy work with Congress and the Administration to stress that extensions or expansions of the CDC’s order are not the right policy solution to the nation’s housing challenges, as these orders leave renters at greater risk of displacement and jeopardize the stability of an industry that houses one-third of Americans. We steadfastly maintain the importance of balanced and sustainable housing policies to get the rental housing industry through the crisis and beyond.

Ayiesha Beverly, NAA AVP, Legal, and Nicole Upano, NAA Director, Public Policy, contributed to this report.