The Center for Disease Control’s (CDC) Eviction Moratorium confirms President Reagan’s quip that a government program is the “nearest thing to eternal life we’ll ever see on this earth.” As explained in my prior post, the CDC issued an order in September 2020 “temporarily” halting residential evictions , reasoning that it was necessary to combat the spread of the coronavirus (COVID-19). That moratorium was originally set to expire on December 31, 2020, but Congress extended it by one month. Before that congressional extension expired, the CDC—now acting under the Biden administration—twice extended the moratorium, with the latter extension due to expire on June 30, 2021.

After repeatedly stating that he lacked the authority to extend the Eviction Moratorium again, President Biden caved into pressure from progressive Democrats and did exactly that earlier this month. The President doubted that the new extension would pass “constitutional muster” but was hopeful that the legal challenges would provide more time to distribute congressional funds for rental assistance.

Like the prior versions, the latest version of the Eviction Moratorium generally prohibits the evictions of a residential tenant who expects to earn $99,000 or less in 2021 (or $198,000 if filing jointly) and signs a declaration stating that he or she has lost income, applied for government assistance, and would likely become homeless or forced to move into a more crowded living situation if he or she was evicted. But, unlike prior versions, the latest one does not ban evictions nationwide. Instead, it applies in counties that are “experiencing substantial or high levels of community transmission of [COVID-19].” This latest version is set to expire on October 3, subject, of course, “to revision based on the changing public health landscape.”

The upshot is that the Eviction Moratorium is in effect for over 90 percent of the country and nearly all counties in Texas. Check this map to determine whether it applies to your property. The courts, however, are split on whether the Moratorium is legal. The Supreme Court has not ruled on it yet, but there are strong indications that most of the justices believe that the CDC lacks the authority to halt evictions. Here’s what you need to know about the latest extension:

Is the Eviction Moratorium—and Its Extension—Unlawful?

Maybe. The latest version of the Eviction Moratorium, like all prior versions, is based on the Public Health Service Act of 1944. That statute does not expressly allow the CDC to halt evictions. Instead, it provides that the CDC director may “make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.” And, in carrying out such regulations, the director “may 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.”

As explained in my prior post, courts are split on whether halting eviction is one of those “other measures.” On one hand, the Sixth Circuit, as well as federal district courts in Ohio, Tennessee and the District of Columbia, have held that the “other measures” are limited to those that are expressly listed in the statute—fumigation, disinfection, sanitation, extermination, or destruction of animals or articles. As the Sixth Circuit explained, the Government’s broader interpretation of the statue 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 Eleventh Circuit has also cast doubt on whether the CDC’s statutory authority extends to halting residential evictions.

On the other hand, the District of Columbia Circuit, as well as federal district courts in Louisiana and Georgia, have stated that the CDC does have the statutory authority to suspend residential evictions.

Didn’t the Supreme Court Already Hold that the Eviction Moratorium Was Unlawful?

Again, no. Biden administration officials’ statements that the Supreme Court has ruled on the Eviction Moratorium are inaccurate. The Court has never ruled on whether the CDC has the constitutional or statutory authority to halt residential evictions. Nonetheless, the justices’ votes in Alabama Association of Realtors v. Department of Health and Human Services indicate that a majority of them believe that CDC does not.

In Alabama Association of Realtors, a group of rental managers and trade associations sued the Department of Health and Human Services (HHS) in the District of Columbia, arguing that the Eviction Moratorium exceeds the CDC’s statutory authority. The district court agreed with the plaintiffs. HHS then asked the district court to stay its judgment—i.e., allow the Eviction Moratorium to continue—during the appeal. To obtain a stay pending appeal, a party usually must show: (1) a strong likelihood that it will prevail on the merits; (2) an irreparable injury absent the stay; (3) whether issuing the stay will injure non-parties; and (4) where the public interest lies. The district court granted HHS’s request for a stay, even though the court believed that it had not satisfied the first requirement.

The plaintiffs then requested that the Court of Appeals for the District of Columbia Circuit vacate the district court’s order granting the stay. The court of appeals denied that request, allowing the Eviction Moratorium to continue. But, unlike the district court, the court of appeals held that HHS had “made a strong showing that it is likely to succeed on the merits.”

The plaintiffs then requested that the Supreme Court vacate the order granting the stay. It denied that request by a 5–4 vote on June 29. The Court’s order stated that four justices—Justices Thomas, Alito, Gorsuch and Barrett—would have granted the application. Although those justice did not explain the reasoning behind their votes, it is fair to infer that they do not believe that HHS is likely to prevail on the merits, given the requirements for obtaining a stay pending appeal.

Justice Kavanaugh concurred in the denial of the plaintiffs’ request and wrote a one-paragraph opinion explaining why. First, he stated that the CDC had “exceeded its statutory authority by issuing a nationwide eviction moratorium.” Nonetheless, Justice Kavanaugh stated that he was voting “at this time to deny the application” because the Eviction Moratorium was ending “in only a few weeks” and “those few weeks will allow for additional and more orderly distribution of the congressional rental assistance funds.” Moreover, Justice Kavanaugh stated that “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium” again. None of the other justices joined Justice Kavanaugh’s opinion.

Thus, the Supreme Court did not declare that the CDC had exceeded its statutory authority in adopting the Eviction Moratorium or that it could not extend it again. Only Justice Kavanaugh said that. But his vote, when combined with those of the four dissenting justices, strongly indicates that the Supreme Court would declare that the Eviction Moratorium was unlawful if squarely presented with the question.

Does the Latest Version of the Eviction Moratorium Fix the Problems with the Prior Versions?

Probably not. The latest version of the Eviction Moratorium is slightly narrower than the prior versions; it applies “only” in counties “experiencing substantial or high rates of community transmission levels of” COVID-19. According to the CDC’s own data, that currently includes approximately 90 percent of the United States and all major cities. Thus, the modification to the Eviction Moratorium is little more than window dressing.

More important, the latest version of the Eviction Moratorium still relies on the same interpretation of the same statute that most courts have rejected. Those courts did not hold that prior versions of the Eviction Moratorium were unlawful because they halted too many evictions in too many places. Instead, the courts held that the CDC lacked the authority to halt evictions at all, because that was dissimilar to the measures that the statute expressly allowed the CDC director to take. Thus, nearly every legal argument made against the prior versions of the Eviction Moratorium apply equally to the latest version.

Tilting the Scales in Your Favor

Given the negligible differences between the latest version of the Eviction Moratorium and the prior versions, my previous advice to landlords dealing with non-paying tenants is still sound: refrain from evicting them if they satisfy the Moratorium’s requirements and encourage them to participate in the Texas Eviction Diversion Program.

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