On March 13, 2020, the Trump Administration declared COVID-19 a national emergency. Two weeks later the Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, 134 Stat. 281 (2020) (CARES Act) was signed into law. The CARES Act included a 120-day eviction moratorium for rental properties that participated in federal assistance programs or were subject to federally-backed loans. On September 20, 2020, in response to President Trump's order that the Secretary of the Department of Health and Human Services (HHS) and the Director of the CDC consider whether temporarily halting residential evictions would mitigate the spread of the COVID-19 virus, HHS directed the CDC to issue an order temporarily halting residential evictions under §361 of the Public Health Service Act (PHSA), 42 U.S.C. § 264(a), and 42 C.F.R. § 70.2 (CDC Order). Several states followed suit and enacted their own temporary eviction moratoria.

While the CARES Act eviction moratorium applied only to rental properties backed by the federal government, the CDC Order applied to all residential properties nationwide and included significant criminal penalties.

Congress subsequently extended the CDC Order through January 31, 2021. The CDC then issued three extension orders, extending the moratorium through July 31, 2021.

In Tiger Lily, LLC v. U.S. Dep't of Health and Urban Dev., (W.D. Tenn. Mar. 15, 2021), a federal judge in the Western District of Tennessee ruled that the CDC lacks the statutory authority under 42 U.S.C. § 264(a) to impose a nationwide eviction moratorium. The next day, the government moved to stay the ruling pending appeal.

On March 29, 2021, the Sixth Circuit Court of Appeals denied the government's motion to stay the ruling pending appeal, holding that the CDC was unlikely to prevail on the merits (Tiger Lily, LLC v. U.S. Dep't of Health and Urban Dev., 992 F.3d 518 (6th Cir. 2021)).

The appeal was decided on July 23, 2021 (Tiger Lily, LLC v. U.S. Dep't of Health and Urban Dev., (6th Cir. 2021)).

On appeal, a three-judge panel ruled that the CDC lacks the authority to impose a nationwide eviction moratorium, finding that the CDC exceeded the statutory authority granted under Section 264(a) of the PHSA.

The court determined that the first clause of Section 264(a) provides the CDC, with the approval of HHS, the authority to enforce such regulations as are necessary to combat the international or interstate spread of communicable disease. However, in narrowly construing the language of the statute's second clause, the court pointed out that the measures enumerated in the statute for enforcing any such regulations are limited to the "inspection, fumigation, disinfection, sanitation, pest extermination [and] destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings." The court observed that the CDC's nationwide eviction moratorium satisfied none of those statutory limitations and vacated the CDC Order.

The CDC Order continues to face various challenges in courts across the nation. Two examples can be found in:

There has been a flurry of nationwide cases challenging the statutory and constitutional authority of the CDC to impose or extend the nationwide eviction moratorium. This case's ruling covers Kentucky, Michigan, Ohio, and Tennessee. Landlords in these states no longer have to comply with the CDC Order. In areas there the CDC Order remains in effect, it is set to expire on July 31, 2021, and no further extensions are expected.

When the CDC Order expires or is ruled ineffective, counsel needs to be mindful of ongoing state and local eviction moratoria. For a regularly updated collection of state and local eviction moratoria, see Covid 19: Commercial and Residential Eviction Moratoriums Select State and Local Laws Tracker (US).