Eviction Moratorium
The Framers understood that property rights comprise an indispensable bulwark against government. Covid taught us, however, that bureaucrats believe that bulwark ought to be more notional than real. After state-level bureaucrats imposed on our liberties by confining us to our homes, the Centers for Disease Control and Prevention (CDC) imposed further by forbidding landlords from evicting residential tenants who failed to pay rent.
The audacity of this move cannot be fully appreciated without accounting for the context in which it occurred. The CDC was not the first mover in this attack on property rights. Congress, in a constitutionally dubious move of its own, had imposed a 120-day moratorium on evictions from government-subsidized housing in March 2020. But when it expired, Congress chose not to extend it.
The CDC thought this was a mistake, and so took it upon itself to impose an even more far-reaching moratorium. Administrative agencies have no power to act in the absence of congressional authorization, but the CDC ignored this limitation.
When called upon to justify its order, CDC referred to 42 U.S.C. § 264(a), a statute that couldn’t possibly support its claim. The first sentence of this provision gives the CDC authority to take measures that “are necessary to prevent the … spread of communicable diseases from … one State … into any other State … .” The second sentence lists the measures it may take: “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 … .”
Even if one could squint hard enough to find an eviction moratorium lurking in the second sentence’s penumbra, there’s still the limitation imposed by the first sentence: The CDC is supposed to address interstate transmission of communicable diseases. Federal bureaucrats tell themselves convoluted stories to justify inserting themselves where they don’t belong. The CDC’s order spoke at great length about the possibility that evicted individuals or families might move into “shared housing settings with friends or family, or congregate settings such as homeless shelters,”[1] and it meticulously described how this population would then be at heightened risk of contracting Covid. It said the order was essential to support state bureaucrats who had ordered citizens to remain in their homes. But as for the interstate impact of evictions on the spread of the disease—the only jurisdictional basis for the CDC’s intervention—it offered nothing but a single throwaway observation that a small percentage of people who move each year do so across state lines.
The CDC’s attempt at self-aggrandizement did not survive the Supreme Court’s attention.[2] However, it took almost a full year from the time the CDC announced the eviction moratorium until the Supreme Court provided relief. Many lower courts accepted the CDC’s strained arguments and refused to uphold landlords’ rights to their property. Although a welcome decision, it did not come in time to save some property owners who could not afford to pay their mortgages without receiving rental income.
[1] 85 Fed. Reg. 55292 (2020).
[2] Alabama Ass’n of Realtors v. HHS, 594 U.S. 758 (2021).
March 26, 2025