Biden Administration Extends CDC Eviction Moratorium Until June 30—the Legal Battle Over it Will Continue
Earlier today, the Biden administration issued an order extending the Centers for Disease Control nationwide eviction moratorium until June 30. Biden’s previous revival of an order initially issued under the Trump administration is set to expire on March 31.
The new order makes only minor substantive changes to the old one, other than the three-month extension. Those changes will have little, if any, impact on the ongoing litigation over the moratorium’s legality.
That fight is now set to continue for at least another three months. So far, three federal district courts have ruled against the order, while two have upheld it. I analyzed these rulings here, here, and here. These cases will now be reviewed by appellate courts, and other lawsuits against the order will also continue.
In my view, both the original Trump order and Biden’s revival and extension of it are illegal because they go beyond what Congress has authorized the CDC to do; if the statute did go that far, it would be an unconstitutional delegation of legislative power, effectively giving the CDC the power to suppress virtually any activity of any kind.
While the latest version of the order has few substantive changes, it does include an extensive new section defending the moratorium on public health grounds. It is possible this was included in order to bolster the government’s position in the ongoing litigation over the legality of the moratorium.
I could be wrong about this. But, at least at this point, I am skeptical that the justifications in the new order are likely to persuade any judge to uphold it that would otherwise be inclined to strike it down. The main argument the CDC offers is that eviction increases movement, which in turn is likely to increase the spread of the disease:
Although data are limited, available evidence suggests evictions lead to interstate spread of COVID-19 in two ways. First, an eviction may lead the evicted members of a household to move across state lines. Of the 35 million Americans who move each year, 15% move to a new state. Second, even if a particular eviction, standing alone, would not always result in interstate displacement, the mass evictions that would occur in the absence of this Order would inevitably increase the interstate spread of COVID-19. This Order cannot effectively mitigate interstate transmission of COVID-19 without covering intrastate evictions, as the level of spread of SARS–CoV-2 resulting from these evictions can lead to SARS-CoV-2 transmission across state borders. Moreover, intrastate spread facilitates interstate spread in the context of communicable disease spread, given the nature of infectious disease. In the aggregate, the mass-scale evictions that will likely occur in the absence of this Order will inevitably increase interstate spread of COVID-19.
As I have previously pointed out (and as emphasized by two of the court decisions striking down the order), the same rationale could be used to justify CDC suppression of almost any
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