In a lawsuit filed by residential property owners and managers, a panel of the U.S. Court of Appeals for the Sixth Circuit held, on July 23, 2021, that the CDC lacked authority under the Public Health Service Act to impose a nationwide eviction moratorium. Tiger Lily v. United States Dept. of Housing and Urban Development, 2021 WL 3121373 (6th Cir. 07/23/2021).
At the start of the pandemic, Congress passed the CARES Act, which contained a 120-day moratorium on evictions nationwide based on nonpayment of rent for tenants residing in certain federally financed rental properties. When the CARES Act moratorium expired on July 25, 2020, the CDC extended the moratorium by Halt Order based on the authority granted under the Public Health Services Act of 1944, 42 USC § 264(a). Subsequently, Congress acted once again extending the moratorium through January 31, 2021, in the Consolidated Appropriations Act. Just before the statutory extension lapsed, the CDC issued a new Halt Order further extending the moratorium through March 31, 2021. (The CDC has further extended its Order until October 3, 2021.)
In Tiger Lily, the Sixth Circuit held that the statute the CDC cited as its basis for the Halt Orders, 42 USC § 264, does not support the broad power the CDC claims. The statute allows the CDC to “make and enforce such regulations as … are necessary to prevent the introduction, transmission, or spread of communicable diseases” and authorizes the CDC to provide for “inspection, fumigation, disinfection, sanitation, pest extermination, … and other matters” as may be necessary. According to the court, “government intrusion on property to sanitize and dispose of infected matter is different in nature from a moratorium on evictions.” Moreover, the court found that the landlord-tenant relationship has been historically the province of the states; in order for Congress to invade that province it must make its intent to do so “unmistakably clear,” which the statute did not.
Similar action has been taken in courts throughout the country, including the recent opinion of the D.C. District Court, which “vacated” the CDC Order. Ala. Ass’n of Realtors, et al. v. U.S. Dep’t of Health & Human Servs., No. 1:20-cv-0377 (D.D.C. May 5, 2021), stayed during appeal.