Judge Strikes Down Federal Eviction Moratorium, Setting Up High-Stakes Appeal

May 5, 2021
Originally published on May 6, 2021 8:12 am

A federal judge has issued a sweeping ruling that would revoke a pandemic eviction moratorium put in place by the Centers for Disease Control and Prevention.

But the Justice Department is appealing on behalf of the CDC.

The case was brought by the Alabama Association of Realtors, which argued that the CDC doesn't have the power to tell landlords they can't evict people during a pandemic. The judge agreed.

"It is the role of the political branches, and not the courts, to assess the merits of policy measures designed to combat the spread of disease, even during a global pandemic," Judge Dabney Friedrich of the U.S. District Court for the District of Columbia wrote in her ruling.

"The question for the Court is a narrow one: Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not."

That act empowers the CDC to make and enforce regulations that it judges are necessary to prevent "the introduction, transmission, or spread of communicable diseases." But the judge said in this case the CDC overreached.

There have been several rulings on the matter with conflicting decisions. This latest one goes further than any of them by moving to strike down the eviction moratorium nationwide.

But the U.S. Court of Appeals for the District of Columbia Circuit could now issue a stay, which would keep the CDC's eviction protections in place, for now.

"My hope is that the D.C. Circuit Court will quickly issue a stay, and this ruling will not have effect," said Shamus Roller, executive director of the National Housing Law Project.

"The underlying ruling in this case is pretty weak, in my opinion," Roller said. "Congress in December extended the CDC order. So clearly Congress thinks that the CDC has this authority."

But Roller said it's unclear whether the appeals court will issue a stay and which way the appellate decision may go. He said the Trump administration appointed many conservative federal judges who he suspects could rule against the government exerting this kind of power — telling landlords not to evict tenants during a public health emergency.

"It'll be a three judge panel that will review this," Roller says. "It will depend greatly on which three judges get selected."

Meanwhile, the plaintiff in this latest case, the Alabama Association of Realtors, said it's pleased by the ruling.

The group's CEO, Jeremy Walker, said, "The ruling will bring much needed relief to struggling mom-and-pop housing providers across the country." He said the economy is growing again and getting back on its feet. "Our focus is now on the implementation of emergency rental assistance to support tenants who continue to suffer from the effects of the pandemic as soon as possible."

The U.S. Census Bureau says nearly 7 million Americans are still behind on rent. And while Congress has authorized about $50 billion in rental assistance money, the vast majority of it hasn't reached the people who need it yet.

So housing groups say that without the CDC order in place, many families will get evicted who might otherwise have avoided it. They worry these families could wind up homeless, just because they lost work during the worst pandemic in a century.

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NOEL KING, HOST:

During the pandemic, the CDC put in place a moratorium on evictions because people needed to shelter at home, and they couldn't do that if they didn't have homes. Yesterday, a federal judge struck down that moratorium. But then, after an appeal, she put her ruling on hold. This means that people who owe their landlords rent are still protected by the CDC order, but we don't know for how long.

NPR's Chris Arnold has been following this story. Good morning, Chris.

CHRIS ARNOLD, BYLINE: Good morning, Noel.

KING: What are the legal arguments in this case that I imagine probably impact millions of people?

ARNOLD: Yeah. Yeah, it definitely does. The case was brought by the Alabama Association of Realtors, and they basically argued that, look, the CDC doesn't have the power to tell landlords all over the country that they can't evict people if they want to, even in the middle of the worst pandemic in a hundred years. And the judge in this case agreed. The judge is Dabney Friedrich, and she was appointed during the Trump administration. Now, the CDC does have the ability to order certain things to prevent the spread of disease and stuff. But the judge said in this case, the CDC overreached. There have been conflicting decisions. Other judges have looked at this another way. But the bottom line is this ruling goes far beyond any of the others. And on its face, it would strike down the eviction moratorium nationwide.

KING: So the judge rules and she says, OK, I'm striking down the moratorium. But then she reverses herself. Why?

ARNOLD: Well, a big part of that is that the Justice Department is appealing on behalf of the CDC. So now this all has to - you know, people have to take another look. I talked to Shamus Roller about this. He's a lawyer. He heads up the National Housing Law Project.

SHAMUS ROLLER: The underlying ruling in this case is pretty weak, in my opinion, because Congress, in December, extended the CDC order. So clearly, Congress thinks that the CDC has this authority.

ARNOLD: And like you said, we found out late last night that the judge has agreed to put her ruling on hold for at least a week. It's a little unclear. So there'll be no immediate effect. But the judge stressed that she is standing behind her ruling. And Roller says, look, we just don't know how this appeal is going to play out. And he says while the CDC order was issued under the Trump administration, Trump also appointed many conservative federal judges. Roller suspects they, too, are likely to rule against the CDC having this kind of power to tell landlords what they can do. And he says all this is going to get decided by a panel of just three judges. So the outcome really depends greatly on which three judges get selected.

KING: You've been covering housing for a while now. What are landlords saying about this?

ARNOLD: Well, landlords say, look, I mean, the economy is picking up. They want things to get back to normal. They want control over their properties again. They've got bills to pay, too. And in a statement, the realtor group that brought the case said, look, this will bring needed relief to mom and pop landlords. And it also said, though, that the focus now should be on getting emergency rental assistance to tenants so that landlords don't have to evict them.

KING: And in fact, Congress allocated a lot of money for emergency rental assistance. Is it getting to people?

ARNOLD: Congress did pass a lot of money. It's about $50 billion for renters and landlords to avoid evictions. But in a lot of places, it's not reaching the vast majority of people that need it yet. And that's what people like Roller are worried about that, look, landlords are going to get fed up, say this is taking too long for this money to flow and decide to just evict people. It's pretty easy to get tenants right now that there's a housing shortage. And that could mean that a lot of people get evicted when they could have qualified for all of this help from the federal government. The Census Bureau says there are 7 million households now behind on their rent payments, so a lot of people could wind up homeless.

KING: And a lot at stake. NPR's Chris Arnold.

Thanks, Chris.

ARNOLD: Thanks, Noel. Transcript provided by NPR, Copyright NPR.