At the beginning of the COVID-19 pandemic, the Secretary of Housing and Urban Development (HUD) implemented a foreclosure and eviction moratorium for all single-family mortgages insured by the Federal Housing Administration (FHA). At that time, The Coronavirus Aid, Relief, and Economic Security (CARES) Act imposed a temporary moratorium on evictions of certain renters subject to certain conditions; however, that moratorium has since expired. The expiration of the CARES Act eviction moratorium is the supposed catalyst for Executive Order (E.O. 13945), which instructs the Centers for Disease Control and Prevention (CDC) to consider whether measures to temporarily halt residential evictions of tenants for failure to pay rent are necessary to prevent the further spread of COVID-19 from one state to another. In posing this question, the CDC noted the “growing and disproportionate unemployment rates for some racial and ethnic minority groups during the COVID-19 pandemic may lead to greater risk of eviction and homelessness or sharing of housing.”
On September 4, 2020, the CDC published an order (the Order) under Section 361 of the Public Health Service Act to temporarily halt residential evictions to prevent the further spread of COVID-19. The Order is effective through December 31, 2020, and it prevents a landlord, owner of a residential property or other person with a legal right to pursue eviction or possessory action from evicting any covered person1 from any residential property in the United States. However, the Order does not relieve any individual of any obligation to pay rent, make a housing payment, or comply with any other obligation that exists under a tenancy, lease, or similar contract. Landlords, residential property owners, and those with a right to pursue eviction or possessory action may still charge or collect fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis under the terms of any applicable contract. Additionally, renters may still be evicted for reasons other than not paying rent and the Order does not include foreclosure on a home mortgage.
While the CDC argues that the Order is necessary to prevent the spread of COVID-19, it is not clear if Section 361 of the Public Health Service Act gives the CDC the authority to halt evictions or how halting evictions is related to the interstate spread of COVID-19.
Under Section 361 of the Public Health Service Act, the CDC is authorized “to make and enforce such regulations [which] are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the states or possessions, or from one state or possession into any other state or possession.” 42 U.S.C. § 264(a). Additionally, the CDC has the authority to “provide for the apprehension and examination of any individual reasonably believed to be infected with a communicable disease in a qualifying stage and (A) to be moving or about to move from a state to another state; or (B) to be a probable source of infection to individuals who, while infected with such disease in a qualifying stage, will be moving from a state to another state.” Id. at § 264(d). Further, “[w]henever the Director of the CDC determines that the measures taken by health authorities of any state or possession (including political subdivisions thereof) are insufficient to prevent the spread of any of the communicable diseases from such state or possession to any other state or possession, he/she may take such measures to prevent such spread of the diseases as he/she deems reasonably necessary, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.” 42 C.F.R. § 70.2.
While there have been over 14.9 million cases of COVID-19 diagnosed and over 283,000 deaths in the United States, the CDC does not discuss the likelihood of interstate spread of COVID-19 in the Order, nor does the CDC provide any statistics on the spread of COVID-19 in homeless shelters or communal or shared living arrangements, which the Order is designed to prevent. The likelihood of a person who resides in a homeless shelter or communal or shared living arrangement spreading COVID-19 on an interstate basis is also unclear.
Despite being enacted in 1944, there is little case law interpreting 42 U.S.C. § 264, and the CDC has used its power under 42 U.S.C. § 264 and 42 C.F.R. § 70.2 sparingly. When the CDC has relied on these provisions, it is often in the context of international travelers who have been to an area with known levels of communicable disease or were themselves diagnosed with a communicable disease, most often tuberculosis. Given the lack of relevant case law and the absence of information on the relationship between homeless or communal or shared living arrangements and the interstate spread of COVID-19, the Order may be ripe for legal challenge, particularly under the Fifth Amendment to the United States Constitution.
The Fifth Amendment provides that the federal government shall deprive no person of life, liberty or property without due process of law. U.S. Const. amend. V. The Supreme Court has interpreted the Fifth Amendment’s Due Process Clause to “contain a substantive component that bars certain arbitrary, wrongful government actions ‘regardless of the fairness of the procedures used to implement them.’” Zinermon v. Burch, 494 U.S. 113, 125 (1990) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). Given the recent publication of the Order, the lack of statistics relevant to the interstate spread of COVID-19 and evictions and the dearth of case law in this area of law, it remains to be seen whether the Order can withstand legal challenge. The Order is set to expire on December 31, 2020 and it is not known if President Trump or the CDC intends to extend the Order into 2021.