Is the CDC Eviction Moratorium Unconstitutional?

Last Thursday, a federal judge ruled that the Center for Disease Control’s (CDC’s) moratorium on evictions is unconstitutional. The judge, John Barker, declined to issue an injunction against the CDC’s rule, but said that he expects that the CDC will respect his decision and withdraw the moratorium.

So far, the CDC has not issued a statement.

One caveat: Even if the CDC order is revoked, many states have similar bans on evictions in place.

The CDC first issued their order, titled “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19” on September 1, 2020. The CDC’s reasoning for this order was to limit the number of evicted persons crowding in homeless shelters or moving in with friends and relatives, which could worsen the pandemic.

The rule prevents landlords from evicting tenants who meet the following criteria:

  • Earn less than $99,000 per year, for individuals, or $198,000 for joint filing
  • Have received a stimulus check or reported no income to the IRS in 2019
  • Have used their best efforts to obtain government assistance for housing
  • Cannot pay full rent due to loss of income
  • Are attempting to make at least partial rent payments
  • Would be homeless if evicted.

Tenants who meet these criteria are required to sign a declaration, under penalty of perjury, that they meet these criteria.

The order was originally meant to expire at the end of 2020 but was extended until the end of March 2021.

The plaintiffs in the case—Texas Public Policy Foundation and Southeastern Legal Foundation—argued in their lawsuit that the federal government lacks the authority to impose an eviction ban.

Judge Barker agreed, stating “The federal government cannot say that it has ever before invoked its power over interstate commerce to impose a residential eviction moratorium. It did not do so during the deadly Spanish Flu pandemic. Nor did it invoke such a power during the exigencies of the Great Depression. The federal government has not claimed such a power at any point during our Nation’s history until last year.”

Until the CDC or other parts of the federal government respond to Judge Barker’s order, property owners and tenants are left guessing what will happen next.

Article written by Dave Meyer

Original Article: https://www.biggerpockets.com/blog/eviction-moratorium-unconstitutional?utm_source=Iterable&utm_medium=email&utm_campaign=Newsletter%20%7C%2003/04/21

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