By Roderick M. Hills
September 4, 2020
On Tuesday, the Center for Disease Control filed a notice of a new order imposing through the end of the year a moratorium on the eviction of residential tenants who declare that they make $99,000 or less, expect to be unable to pay their rent because of a loss of income, and would become homeless if evicted. As authorization for this order, the CDC cited 42 C.F.R. §70.2, a rule issued in February of 2020 that implements section 361 of the Public Health Service Act (PHSA) mostly by repeating almost verbatim the language of 42 U.S.C. §264(a).
As I shall explain below, there is a powerful case that the CDC’s order goes far beyond the spirit and maybe even the letter of the rule and statute that purportedly authorize it. Nevertheless, those legalities will probably matter very little in constraining Presidential power in a crisis. Far more important is the public perception that something needs to be done about evictions and that neither Congress nor the states are doing it. By contrast with Trump’s other legally dubious responses to COVID-19 such as the extension of unemployment assistance, the usual critics of the Trump Administration have been startlingly silent about the CDC’s anti-eviction order. That silence seems like the sort of tacit bipartisan approval that tends to sweep away legalistic considerations.
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