Government more Dangerous than Pandemic in CDC Eviction Moratoriums

Congress initiated the first order of moratorium of residential evictions of tenants for non-payment of rent as a portion of the giant piece of legislation for the pandemic called the CARES Act (dated 3/27/2020).  This legislation only applied to federally-financed residential property or property participating in federal assistance programs.  This Order ran its course during the next 120 days, and expired.  Congress never extended it.  There are no controversies or matters of interest to this essay.  The scope of this law had only middling results

On August 8, 2020, President Trump issued an Executive Order to have the CDC (Center for Disease Control and Prevention) consider whether any measures temporarily halting residential evictions of tenants for failure to pay rent  could be put into effect to prevent the further spread of COVID-19 among the states and territories.  The CDC found authorization for the Executive Order in Section 361 of the Public Health Service Act, the CDC’s initial authorization statute.  

The CDC issued its first Eviction Moratorium Order on September 4, 2020.  While the CDC First Order was in effect, Congress on December 31, 2020, enacted the Consolidated Appropriation Act of 2021 and it was signed by President Trump on December 17, 2020.  This document contained nearly word-for-word language of the CDC First Order, which has been considered as equivalent to Congress authorizing the legislation and satisfying the Constitutional requirement that only Congress has legislative power (Article I, Section 1).  This Order expired on January 31, 2021 and was not extended by either Congress or the CDC. 

On January 29, 2021 the CDC issued its second Eviction Moratorium Order.  The CDC pointed to worsening conditions as rational for the Second Order.  It only applies to tenants that meet all the following seven criteria: 1) Single tenants expecting to earn taxable income less than $99,000 or married filing jointly less than $198,000; 2.) are unable to pay full rent due to “substantial” loss of household income; 3.) are using best efforts to make partial payments; 4.) would likely experience homelessness or need to move into a shared residence, if evicted; 5.) they understand that rent obligations still apply; 6.) they understand the moratorium is temporary; and 7.) tenants will file a certificate with the CDC to actuate the moratorium to apply to their situation.  The Second Order has a final date of October 3, 2021.  

The Second CDC Order is untethered to the First CDC Order; it is a new order and stands only upon the authority of the CDC to make it law.  A small group of plaintiffs in Canton, OH filed suit in federal district court to prevent the CDC from enforcing the moratorium on the basis that the CDC had no power under the Constitution to legislate.  The case is Skyworks, Ltd. et al v Centers for Disease Control & Prevention.  The District Court found the plain language of Section 361 of the Public Health Service Act gave no authorization to the CDC, and therefor the CDC was acting unconstitutionally as a legislator in violation of Article I, Section 1 of the Constitution.  The case was decided March 10, 2021.  Not satisfied, the CDC came back to the Court with a counter-suit of its own alleging the judgment applied only to the instant plaintiffs, and not to all other plaintiffs, similarly situated across the United States.  Such Chutzpah!  The citation causing the District Court’s opinion to have greater scope is Youngstown Sheet and Tube v. Sawyer (the “seizure case” against President Truman in 1952). Skyworks reeks from inception with bad law and bad economic results.  Tenants are likely to be in the lowest economic quintile, but have government help for survival.  Landlords are similarly in lowest economic situations, often renting out a part of the house they too occupy.  Landlords depend upon timely rent to make timely payments on utilities and their mortgage.  The failure of rent leads to bankruptcy and loss of landlords’ property.  The landlord’s loss is orders of magnitude greater than tenants and because of moral hazard being more likely to accompany this situation it is nearly certain to result – tenants’ enjoy a free-ride of non-payment without peril of enforcement.  Of the two victims, it is the one with the larger loss who is an innocent bystander in law dating to the common law of England that is trampled by Congress.  I hope and expect the Supreme Court will correct the problem.                                                                                 August 17, 2021