The Moratorium Has Been “Evicted”: Now What?

By: Asiya Khan

The Coronavirus Disease 2019 (“COVID-19”) eviction moratorium has been a safeguard for millions of renters across the U.S. Whether imposed by Congress or the Centers for Disease Control and Prevention (“CDC”), the stay on evictions was essential to combat the economic hardships encountered by Americans due to the unavoidable health crisis. On August 26, 2021, the Supreme Court decided the moratorium’s reign was over and left the door wide open for landlords to start collecting on past due rents.

To fully understand the rise and fall of the eviction moratorium and its impacts, it is necessary to recount the events for context. On March 11, 2020, the World Health Organization (“WHO”) officially declared COVID-19 a global pandemic and thereafter, extreme measures were taken across the world to contain the spread of this highly contagious virus. In the United States, millions were either forced to work from home or unable to work due to the nature of their jobs and making the next month’s rent seemed like a nightmare within a nightmare. Congress, realizing the impact of a diminished work force, immediately passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”),[1] which incorporated a 120-day eviction moratorium.[2] When the moratorium expired, Congress showed no intent of renewing the moratorium, so the CDC took over.[3] The CDC’s new moratorium lasted from September 4, 2020 through December 31, 2020[4] and was extended to January 31, 2021 through Congress’s Consolidated Appropriations Act of 2021.[5] The CDC took back control and extended the moratorium to March 31, 2021.[6] The CDC further extended the moratorium until July 31, 2021.[7] The CDC attempted to extend the moratorium one more time on August 3, 2021,[8] but was unsuccessful when the Supreme Court stepped in and terminated its ability.

Over 11 million people faced potential evictions due to the pandemic, and the eviction moratorium sought to alleviate this worry. The contagiousness of the virus made it nearly impossible to earn income and the CDC’s moratoriums—literally—kept the lights on for those struggling tenants. States facing the biggest impacts were Wyoming, Louisiana, West Virginia, and North Carolina, where over 25% of the renting population were behind on rent payments.[9] In Florida, almost a fifth of renters are behind.[10] So how exactly was the CDC able to continuously extend the moratorium and protect the interests of an extremely vulnerable group of people? It was through a clever interpretation of the 1944 Public Health Service Act. Whatever the popular belief of the CDC’s use of this authority may be, it was appropriate at the time considering Congress’ lack of enacting further protective measures.

In pertinent part, the CDC relied on § 361(a) of the Public Health Services Act as its authority to create and extend the eviction moratorium.[11] This provision states:

The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment 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. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such 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, and other measures, as in his judgment may be necessary.[12]

The statute has never been used to establish an eviction moratorium and has rarely been invoked.[13] Previous uses of the statute have been to quarantine infected individuals or prohibit the import and sale of known diseased animals.[14] As the CDC construed the statute, the eviction moratorium was merely a vehicle used to exercise its authority to “enforce regulations…to prevent the introduction, transmission, or spread” of COVID-19.

While the enormous population of renters celebrated the CDC’s crafty application of the statute, the same enthusiasm was not mirrored by landlords. Frustrations amplified with every extension as landlords across the country accumulated billions of dollars of debt.[15] The tug-of-war in ideologies between landlords and the CDC ultimately made its way to the Supreme Court, who pulled the cord on the CDC’s moratorium scheme. On August 26, 2021, the Supreme Court decided Alabama Association of Realtors v. Department of Health and Human Resources and determined the CDC exceeded its authority under § 361(a) of the Public Health Services Act by continuously revitalizing the eviction moratorium.[16] Although the Court acknowledged the public interest in reducing the transmission of the virus, it is up to Congress, not agencies like the CDC, to decide whether the public health situation merits further action.[17] Congress had not done so, and the CDC acted impermissibly by unilaterally instating a federal eviction moratorium through a vague statute. The tumultuous battle between landlords and the moratorium finally ceased.

The question now becomes how soon will the results of Alabama Association permeate our communities? The good news is it will take time for the enormous backlog of eviction cases across the country to result in actual displacement,[18] but this is about as optimistic as it gets. Representative Cori Bush, disagreeing with Alabama Association, conveyed the principal targets of this “disastrous decision” are Black and brown communities, single parents, and especially Black women.[19] Landlords are vastly outnumbered by the number of renters, yet landlords now have the power to disadvantage many. Landlords, too, have found clever ways to remove unprofitable tenants even during the moratorium—citing lease violations or lease expiration as grounds for eviction rather than nonpayment of rent.[20] To make matters worse, the slow rollout of nearly $50 billion in federal aid carved out to assist in paying back rent and thus avoid eviction continues to lag as of August 2021.[21]

Another likely impact of the Supreme Court’s ruling will be the rise of bankruptcy filings. COVID-19 did not contribute to nearly as many bankruptcy filings as predicted—quite the opposite transpired.[22] Traditionally, the number of bankruptcy filings correlate with unemployment.[23] However, Congress’s $1.2 trillion stimulus package allowed consumers and businesses to dodge bankruptcy, contributing to low filing numbers.[24] Without the moratorium, however, the number of filings will start to increase now as landlords have little encumbrance in successfully evicting tenants. By filing for bankruptcy, distressed tenants will have the advantage of the automatic stay—one of the fundamental protections bankruptcy law affords debtors because it immediately stops all collection activities as of the date of filing.[25] If a landlord wishes to continue with an eviction proceeding, they must petition the bankruptcy court to authorize the action.

Filing for bankruptcy is not the only solution. State and local governments can also take immediate action to help their communities by creating local eviction moratoriums. Renters in urgent need of assistance who wish to know if their area has a local eviction moratorium in effect can dial 2-1-1 or visit www.211.org to get more accurate information.[26] Moreover, legal aid attorneys offer services pro bono or at little cost for those renters who are already facing eviction proceedings.[27] The federal government must also increase the disbursement of Emergency Rental Assistance (ERA) funds to deserving tenants. Lastly, for those who want a more direct approach, renters can contact their state representatives and senators to let them hear about the housing crisis and its impact.

Whatever one’s views are towards the eviction moratorium, the housing crisis because of COVID-19 continues to bear on the lives of millions of Americans, primarily our minority communities. Federal funds available must be distributed quickly to negate the detrimental effects and help those in dire need. Still, the elimination of the moratorium is not the end of the road for tenants behind in rent, there are other avenues available for use immediately. As the world recuperates from the pandemic, we must remember to be kind and empathetic to all members in our community and assist those we can.

[1] Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Pub. L. No. 116-136, div. A, title IV, §4024, Mar. 27, 2020, 134 Stat. 281 (2020).

[2]  The CARES Act eviction moratorium began on March 27, 2020, through July 24, 2020. Covered tenants could not be forced to vacate, and landlords could not file notices to vacate, until 30 days after the moratorium expired (August 23, 2020).

Congressional Research Service, Federal Eviction Moratoriums in Response to the COVID-19 Pandemic, (March 30, 2021) https://crsreports.congress.gov/product/pdf/IN/IN11516/.

[3] Liptak and Thrush, The Supreme Court Ends Biden’s Eviction Moratorium, The New York Times, (August 26, 2021) https://www.nytimes.com/2021/08/27/us/eviction-moratorium-ends.html.

[4] Congressional Research Service, Federal Eviction Moratoriums in Response to the COVID-19 Pandemic, (March 30, 2021) https://crsreports.congress.gov/product/pdf/IN/IN11516/.

[5] Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, div. A, title V, §502, Dec. 27, 2020, 134 Stat. 2078-2079 (2020).

[6] National Low Income Housing Coalition, Eviction Update, (March 15, 2021) https://nlihc.org/coronavirus-and-housing-homelessness/eviction-update.

[7] Centers for Disease Control and Prevention, CDC Director Extends the Eviction Moratorium for 30 days, (June 24, 2021) https://www.cdc.gov/media/releases/2021/s0624-eviction-moratorium.html.

[8] The order was set to expire on October 3, 2021, and only applied to “United States counties experiencing substantial and high levels of community transmission levels of” COVID-19.

Centers for Disease Control and Prevention, CDC Issues Eviction Moratorium in Areas of Substantial and High Transmission, (August 3, 2021) https://www.cdc.gov/media/releases/2021/s0803-cdc-eviction-order.html.

[9] Waddell Braedon, Millions at Risk of Losing Their Homes After Supreme Court Ruling, U.S. News & World Report, (August 31, 2021) https://www.usnews.com/news/best-states/articles/2021-08-31/millions-could-face-eviction-following-supreme-court-decision/.

[10] Id.

[11] Alabama Assn. of Realtors v. Department of Health and Human Servs., 2021 WL 3783142 at *1 (2021).

[12] (emphasis added). See also 42 U.S.C. § 264(a)

[13] Alabama, 2021 WL 3783142 at *2.

[14] Id.

[15] Liptak and Thrush, The Supreme Court Ends Biden’s Eviction Moratorium, The New York Times, (August 26, 2021) https://www.nytimes.com/2021/08/27/us/eviction-moratorium-ends.html.

[16] Alabama, 2021 WL 3783142 at *4.

[17] Id.

[18] Liptak and Thrush, The Supreme Court Ends Biden’s Eviction Moratorium, The New York Times, (August 26, 2021) https://www.nytimes.com/2021/08/27/us/eviction-moratorium-ends.html.

[19] Id.

[20] Congressional Research Service, Federal Eviction Moratoriums in Response to the COVID-19 Pandemic, (March 30, 2021) https://crsreports.congress.gov/product/pdf/IN/IN11516/.

[21] Arnold and Calamur, The Supreme Court Will Allow Evictions to Resume. It Could Affect Millions of Tenants, National Public Radio, (August 26, 2021) https://www.npr.org/2021/08/26/1024668578/court-blocks-biden-cdc-evictions-moratorium.

[22] Layne, COVID Was Supposed to Increase Bankruptcies. Instead, They’ve Gone Down., Harvard Business School, (November 23, 2020) https://hbswk.hbs.edu/item/covid-was-supposed-to-increase-bankruptcies-instead-theyve-gone-down.

[23] Id.

[24] Id.

[25] See 11 U.S.C. §362.

[26] National Low Income Housing Coalition, National Moratorium, (2021) https://nlihc.org/coronavirus-and-housing-homelessness/national-eviction-moratorium.

[27] Id.

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