The Trump administration has pushed the envelope of its executive authority once again by issuing a blanket eviction moratorium that applies to all rental properties nationwide.
The order, issued by the Centers for Disease Control and Prevention (CDC) in early September, says tenants earning up to $99,000 ($198,000 for joint filers) cannot be evicted for failing to pay their rent, provided they tell their landlord in writing that they have made every effort to obtain government assistance, that they have lost income or received extraordinary out-of-pocket medical bills, and that their eviction would force them into homelessness or into a crowded living situation.
Landlords can still evict tenants who engage in criminal activity on the property or who pose a risk to public health or safety. Property owners who try to remove a tenant in violation of the CDC’s directive could face a $100,000 fine and a year in jail. The order goes beyond the federal eviction moratorium passed by Congress in March, which applied only to the 28 percent of properties covered by federal mortgage guarantees or other federal housing programs.
Some housing advocates cheered the move and called for emergency rental assistance to forestall a potential wave of evictions once the moratorium ends. Landlord groups opposed the order while also making the case for rental assistance that will help their members get paid.
But despite fears that a pandemic-ravaged economy would force renters from their homes in droves, evictions were down nationwide at the end of summer. “Data so far show no indication of a heightened rate of evictions,” says economist Salim Furth of George Mason University’s Mercatus Center. “By acting prematurely, the administration is putting a heavy financial burden on housing providers.”
The eviction moratorium also rests on shaky legal ground. The CDC says its authority comes from federal regulations that give the agency’s director the power to take any measures deemed “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 examples, South Texas College of Law professor Josh Blackman noted in a blog post for 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.”
Legal or not, the CDC order shows how a patchwork of temporary eviction moratoriums can morph into a sweeping federal policy mainstream enough to be adopted by a Republican administration.
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