Federal appeals court finds CDC eviction moratorium unlawful

A federal appeals court ruled Friday that the Centers for Disease Control and Prevention (CDC) exceeded its authority by temporarily halting evictions amid the pandemic.

In a unanimous ruling, a three-judge panel of the Cincinnati-based 6th Circuit Court of Appeals agreed with a lower court that the agency had overreached with its eviction moratorium, which is set to expire at the end of July.

The CDC order, originally enacted in September 2020 and subsequently extended by Congress and President Biden, aims to protect cash-strapped tenants who would face overcrowded conditions if evicted.

But in its Friday ruling, the court rejected the CDC’s two-pronged argument that the eviction freeze was within its authority, or that Congress authorized the measure after the fact as part of its COVID-19 relief legislation.

It was not immediately clear what practical impact would result from the ruling, which affirmed a March decision by a federal judge in Tennessee in favor of a group of landlords. That lower court ruling, by U.S. District Judge Mark Norris, a Trump appointee, blocked enforcement of the eviction freeze throughout the Western District of Tennessee.

The latest development comes after the Supreme Court last month voted 5-4 to reject an emergency request from a separate group of landlords who also sought to have the eviction ban lifted, arguing it amounts to unlawful government overreach at a cost of some $13 billion each month to property owners.

Justice Brett Kavanaugh, who was among the majority, indicated that he believed the CDC had exceeded its authority in enacting the moratorium, and said Congress would need to pass new legislation for the CDC to lawfully push the moratorium past July 31.

According to Luke Wake, an attorney at Pacific Legal Foundation, which represents landlords in a number of challenges to the eviction moratorium, the 6th Circuit’s ruling Friday increases the odds that the CDC will simply allow its moratorium to expire at the end of the month, rather than attempt to extend it further or mount an appeal to the Supreme Court.

“I think the real practical significance of this decision today is it puts the CDC in a box. They’re trapped right now,” Wake said. “If they had thought about renewing it, which was entirely likely that they would, now they’ve got the Sixth Circuit definitively agreeing with us that they didn’t have statutory authority, and that if they did, it was a constitutional problem.”

The federal moratorium allows tenants who have lost income during the pandemic to protect themselves from eviction by declaring under penalty of perjury that they have made their best effort to pay rent and would face overcrowded conditions if evicted, threatening public health.

The extended protections come as landlords and property owners have sought to evict tens of thousands of financially distressed renters from their homes and as federal rental aid continues to make its way to needy tenants. Some state governments, which bear responsibility for distributing more than $45 billion in federally funded rental assistance, have been slow to make those disbursements.

The eviction pause has faced numerous legal challenges, leading to a patchwork of legal interpretations nationwide on the moratorium’s lawfulness.

Updated at 12:32 p.m.