FEDERAL COURT STRIKE DOWN CDC EVICTION BAN

A federal ban on evictions was overturned as being outside the statutory powers delegated to the Center for Disease Control.

During the COVID pandemic, there have been a number of state and national efforts to prevent landlords from evicting residential tenants.  Recently, in a case titled Alabama Association of Realtors v United States Department of Health and Hum Services, a moratorium issued by the CDC was overturned. 

The decision focuses upon the lack of statutory authority delegated to the CDC. The CDC acted pursuant to the Public Health Services Act, 42 U.S.C. § 264(a). That statute allows the enactment of “regulations [that] 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.” The decision held that prohibiting landlords from evicting tenants was beyond the powers authorized by this statute.

Generally, courts are directed to prioritize certain types of reviews over others. If a court can address an issue without undertaking a constitutional evaluation, then courts are directed to do so. As such, the opinion focuses upon whether the CDC was even allowed to enact such a regulation and not whether the regulation was constitutional. There may be constitutional problems with enacting a regulation that affirmatively requires landlords to devote their properties to a public purpose, where the government is not offering just compensation and the landlord is unable to generate any income as a result of being prohibited from evicting a non-paying tenant. However, that issue is for another day.

There have been a number of lawsuits addressing this type of issue nationally and it is likely that some or all of them will be the object of appellate decisions.

If you have questions about any eminent domain issues, please do not hesitate to contact me.

The views and opinions expressed in the article represent the view of the author and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is intended to be a substitute for professional legal advice.