Does the CDC Have the Authority to Ban Evictions as Trump Has Proposed?

Donald Trump is proposing a massive increase in federal power by using the authority Congress granted to the Centers for Disease Control in order to ban evictions and keep people in their rental housing through the pandemic.

The eviction ban is based on a 1944 law which gives the CDC the power to stop the interstate transmission of infectious disease. As Reason‘s Christian Britschgi noted, the moratorium vastly expands the CDC’s authority.

The CDC is resting the legal authority for its temporary eviction moratorium on a section of the Public Health Service Act and related federal regulations which give the agency’s director the power to take any measures he or she deems “reasonably necessary” to prevent the interstate spread of communicable disease, including “inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.”

Those specific actions, Josh Blackman notes at the Volokh Conspiracy, “are localized, and limited to prevent the spread of an infection in a single building or location. None of these examples are even remotely close to a nationwide moratorium on evictions.” The CDC’s eviction moratorium, he concludes, “is far beyond the scope of delegated authority.”

Beyond that, the eviction ban only addresses a part of the problem. Renters will still owe the back rent whenever the crisis is over and many landlords — already in dire straits — could find themselves bankrupt unless that rent is paid.

“Without direct rental assistance, rents cannot be paid, and owners face a financial crisis of their own by not being able to maintain properties and pay their mortgages or property taxes,” said Bob Pinnegar, president and CEO of the National Apartment Association, in a statement. “This action risks creating a cascade that will further harm the economy, amplify the housing affordability crisis, and destroy the rental housing industry.”

So in addition to a ban on evictions, the government is going to have to help renters pay the back rent they owe to prevent the situation from becoming critical when the eviction moratorium expires at the end of the year. Many people who are benefitting from the ban on evictions may still find themselves out in the street shortly after the beginning of the new year unless Congress acts.

Surprisingly, even though the federal government’s eviction ban expired in July, eviction rates in most cities have held steady or even declined.

Evictions in Houston, whose moratorium expired in May, are 62 percent below the historic average this month, according to data from Princeton University’s Eviction Lab. It’s a similar story in Kansas City, Missouri, and Cincinnati, Ohio, where eviction filings are 46 percent below average. Moratoriums covering those cities expired at the end of May.

Even with the ban, vacancy rates are skyrocketing as people move out of the city and into cheaper housing in the suburbs. This has led to a huge jump in vacant units, a jump that landlords are trying to forestall by accepting less rent every month in a bid to keep tenants.

Government intervention to get the rental housing situation back to normal could end up going very badly. Any realistic proposal would be ruinously expensive. Meanwhile, some on the left are getting the idea that the government becoming intimately involved in the private contracts between renter and landlord might be a good thing. Why not just make the eviction ban permanent? Or massively increase housing assistance — not just to the “poor,” but to everyone?

Regardless, it’s not going to be cheap to avoid this crisis. But you would hope this ban is temporary and eventually helps both tenants and landlords to stay where they are.