Landlords Challenge U.S. Eviction Ban and Continue to Oust Renters

In this article

In September, the Trump administrationannounced a national moratorium on evictions, via an order by the Centers for Disease Control and Prevention aimed at reducing the spread of coronavirus. The four-month temporary suspension applies to any tenant who can’t make rent due to economic conditions and who presents a written declaration about their circumstances to their landlord.

But the CDC ban now faces legal challenges on multiple fronts, even as landlords continue to routinely file evictions for nonpayment of rent — the very outcome that the order was designed to prevent.

On Oct. 20, the U.S. District Court for the Northern District of Georgia heard the first case against the moratorium, Richard Lee Brown, et al. v. Secretary Alex Azar, et al.. That challenge, brought by a nonprofit called the New Civil Liberties Alliance, has been joined by the National Apartment Association, which represents some 85,000 landlords responsible for 10 million rental units. Lawyers and scholars working on behalf of plaintiffs in the cases say that the CDC lacks the constitutional authority to enact a policy affecting rents.

“This is a very sweeping measure,” says Ilya Somin, law professor at George Mason University. “It’s being done on the basis of laws and regulations that allow the CDC to adopt regulations to stop the spread of contagious disease across state lines. If these regulations are broad enough that they give the CDC the authority to adopt an eviction moratorium that applies to the entire country, then they’re broad enough to mandate or restrict almost any kind of activity.”

A decision for a preliminary injunction could be issued, or denied, within the next two weeks. That could throw open the door for landlords to pursue their claims in court before the moratorium expires at the end of the year.

Such a decision could trigger a surge in evictions:More than 6 million households missed their rent or mortgage payment in September, according to an analysis by the Mortgage Bankers Association. Recent surveys by the Census Bureau show that as many as 11 million people living in rental housing —1 in 6 adult tenants — were late or behind on rent as of last month. Other studies show that the ranks of people living in poverty have grown by some8 million people after increases to the social safety net in the spring were allowed to lapse.

A separate suit brought by the Pacific Legal Foundation is still pending. One of the plaintiffs in that case, a landlord just outside New Orleans who was originally blocked from evicting a tenant by the CDC moratorium, dropped out of the challenge after she was able to pursue the eviction by a different means. Another challenge in Ohio faltered for a similar reason.

Tenant organizers point to these dropped cases as an illustration of the porousness of the federal moratorium. The policy has led some landlords to pursue nitpicking lease violations or punitive measures against tenants who are unable to pay rent — tenants who would otherwise enjoy protection under the CDC’s aegis if they went to court.

“It’s not a protection at all for many renters,” said Alana Greer, director and cofounder of theCommunity Justice Project, a Miami-based nonprofit, during a press conference earlier this month. “This week alone, we’ve had two clients whose electricity was shut off in their building after serving the CDC moratorium,” she said, referring to the declaration required under the order.

The previous federal eviction moratorium, which was authorized by Congress as part of the CARES Act and applied to a narrower subset of renters, expired in July. So did the $600-per-week federal boost to unemployment benefits that proved so critical to out-of-work renters. The first federal moratorium also faced several legal challenges; none of the suits succeeded.

It’s not just landlords pushing back against the eviction moratorium this time, however.The Texas Supreme Court issued an emergency order in September to clarify that landlords can still seek an eviction by challenging the declaration provided by tenants under the CDC order. Jeremy Brown, a justice of the peace in Harris County, Texas — where thousands of Houston tenants have been evicted since the onset of the pandemic — says that most tenants don’t realize their rights and even fewer have the legal resources to successfully pursue them.

“Regardless of your crime, if you get arrested, there’s an obligation for that arresting agent to tell you that you have certain rights,” Brown says. “The right to counsel, the right to remain silent — that same obligation is not there for housing.”

And the CDC itself released an update on Oct. 9 indicating that landlords could still file eviction for nonpayment even if the cases could not be heard until the new year. Civil rights advocates say that this guidance effectively undoes the eviction ban, since so many tenants lose their eviction hearings by default by not showing up for the case once they receive an eviction notice.

“Why would a landlord want to start eviction proceedings in October for an eviction that can’t happen until January?” says Diane Yentel, president and CEO of the National Low Income Housing Coalition. “The answer: to pressure, scare or intimidate renters into leaving sooner.”

Attorneys for the plaintiffs point to a constitutional question: Congress cannot delegate to the executive branch what is effectively legislative authority, and the CDC order usurps this law-making power, they say. Conservatives and libertarians eager to curb the administrative state have used thenon-delegation clause as an argument to some success. Somin at Geoge Mason University points to Supreme Court Justice Elena Kagan’s argument in Gundy v. United States that there is a violation when “unguided and unchecked” authority is given to a federal agency or an executive branch official.

“If the CDC has the power to prevent virtually any activity simply by claiming that doing so might reduce the spread of contagious diseases, and they don’t even have to prove that it actually will, that is as ‘unguided and unchecked’ as anything that I can think of,” Somin says.

Steve Simpson, senior attorney for the Pacific Legal Foundation, says that in addition to the constitutional question, the CDC lacks the statutory authority to enact an eviction ban. The texts for the regulation (42 CFR § 70.2) and the underlying statute (42 USC § 264) both list fumigation, inspection and extermination among the available powers. The statute also authorizes “other measures” as deemed necessary.

“You can’t read a catch-all provision like that, especially when it has enumerated things the CDC can do, so broadly as to obviate the rest of the statute, to make it all pointless,” Simpson says. “Why bother enumerating things if they can basically do anything they want?”

Eric Dunn, director of litigation for the National Housing Law Project, a housing justice nonprofit, says that the plaintiffs have no grounds for the solution they’re seeking. Plaintiffs hope to see a preliminary junction that unfreezes evictions immediately, since the actual resolution of the case could last far longer than the moratorium itself. When the injury in question is entirely economic in nature (and not irreparable harm”), courts by and large won’t issue a preliminary injunction. The injury in eviction challenges such as Brown v. Azar is exclusively economic, Dunn says.

Beyond that technical issue, Dunn says that emergency powers by definition explain the CDC’s statutory authority to take steps normally not available to the agency. Experts dealing with communicable diseases need to be able to take action in order to prevent them from spreading when there’s not time to convene legislative bodies or committee hearings to write new laws — or when there’s no will to do so, as the present stalemate in the Senate has shown. “If there wasn’t a pandemic going on, they wouldn’t be able to impose a moratorium,” he says. “This is a pandemic.”

The public health risks associated with evictions have been modeled by Michael Levy, an epidemiologist at the University of Pennsylvania. His research — which was independent of these legal challenges to the CDC moratorium — focused on the potential effect of evictions on the spread of Covid-19. When tenants are evicted, they often move in with other family members, increasing the size of households and the chance for viral transmission. Levy’s model predicts that a 1% eviction rate would result in a 5% to 10% higher incidence of infection, leading to approximately 1 death for every 60 evictions.

Housing advocates cite evidence like that to argue that the displacement of even a small fraction of the millions of renters at risk of eviction would inflict lasting damage on the economy, further spread the coronavirus, and bring unspeakable pain for families. No matter what the courts decide, struggling tenants still face a potential catastrophe: With no further coronavirus aid likely coming before the November election, they’ll have to find a way to pay when the eviction moratorium expires and all the rent comes due immediately. That could happen later, on Dec. 31, or it could happen sooner.

And even under the moratorium, evictions for nonpayment still continue, albeit at a slower rate.

“We treat housing in this country as a commodity more so than a right,” says Brown, the justice in Houston. “Somebody in my court might have mold in their apartment. It may be uninhabitable. If they don’t pay rent, they still get evicted. The pandemic has highlighted these issues, not caused these issues.”

Source: Read Full Article