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Ohio Federal Judge Declares US CDC Residential Eviction Moratorium Unconstitutional
Practical Law Legal Update w-030-1246 (Approx. 5 pages)
Ohio Federal Judge Declares US CDC Residential Eviction Moratorium Unconstitutional
by Practical Law Real Estate
| Published on 15 Mar 2021 • Ohio, USA (National/Federal) |
On March 10, 2021, an Ohio federal judge ruled in Skyworks, Ltd., v. Ctrs. for Disease Control and Prevention that the temporary national moratorium on residential evictions ordered by the Centers for Disease Control and Prevention (CDC) is unconstitutional. The moratorium, first announced in September 2020, is set to expire on March 31, 2021 for tenants suffering financial hardships caused by the COVID-19 global pandemic. ( (N.D. Ohio March 10, 2021).)
On March 10, 2021, a judge of the U.S. District Court for the Northern District of Ohio declared the current Centers for Disease Control and Prevention (CDC) order imposing an extension of the temporary moratorium on residential evictions (Moratorium) unconstitutional. The Moratorium, extended due to the ongoing spread of COVID-19 and intended to prevent the further spread of COVID-19, prohibits residential evictions of qualifying tenants through March 31, 2021. The judge ruled that by issuing the Moratorium, the CDC acted outside its statutory power.
Background
The COVID-19 pandemic generated unprecedented economic hardship. Millions of Americans experienced reduction in income, loss of employment, and the inability to pay bills, placing many residential tenants at risk of eviction.
On September 4, 2020, the CDC and the Department of Health and Human Services (HHS) ordered a temporary ban on residential evictions through December 31, 2020. Congress extended the Moratorium through January 31, 2021, under the Consolidated Appropriations Act, 2021 (Pub. L. No. 116-260). On January 29, 2021, the CDC extended the Moratorium through March 31, 2021 acting on an emergency basis under Section 361 of the Public Health Service Act, 42 U.S.C. § 264 (Section 361).
The Moratorium, among other things:
- Applies to tenants who have lost work during the pandemic and have no other good housing options.
- Allows residential evictions for reasons other than nonpayment of rent.
- Imposes criminal penalties on landlords that violate the ban.
For more information on the Moratorium and its extension, see Legal Updates, COVID-19: CDC Announces Four-Month Residential Eviction Moratorium and Year-End Appropriations Bill Provides Emergency Rental Assistance and Extension of Eviction Moratorium.
Congress did not further extend the Moratorium when enacting The American Rescue Plan Act of 2021 on March 10, 2021 (see Legal Update, The American Rescue Plan Act of 2021 Provides Continued Rental and Other Housing Assistance).
The Ruling
In Skyworks, Ltd., the judge was asked to decide whether Congress authorized the CDC to adopt a nationwide residential eviction moratorium under Section 361. The court first looked to the plain meaning of Section 361:
The [CDC], with the approval of the [HHS Secretary], is authorized to make and enforce such regulations as in his judgment 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 [Secretary] 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.
(42 U.S.C. § 264(a)) (emphasis added) , at *9.
It was under this statutory authority that the HHS Secretary charged the CDC with taking measures to prevent the spread of COVID-19 and that the CDC issued the Moratorium. The judge determined that when read in its entirety, the Section 361 authority was not limitless, and found that the imposition of the Moratorium exceeded the CDC's authority as delegated by Congress.
In reaching this conclusion, the judge reasoned that:
- By providing a list of examples of measures in Section 361, "other measures" must be the type reasonably contemplated by Congress.
- By directing the examples of measures in Section 361 to "animals or articles found to be so infected or contaminated", Congress intended for the HHS Secretary to institute measures against specific targets as the source of infection or contamination, not against amorphous disease spread.
- By using the word "article", the Congress did not authorize an action such as a residential eviction moratorium.
This is not the first case to find that the Moratorium is unconstitutional. A judge in the Eastern District of Texas came to the same conclusion, but used different reasoning, focusing on constitutional challenges instead of statutory ones (Terkel v. Ctrs. for Disease Control and Prevention, (E.D. Tex. Feb. 25, 2021)). In Terkel, the judge ruled that the federal government's constitutional powers to regulate interstate commerce under the Commerce Clause (U.S. Const. art. 1, § 8, cl. 3) do not include the authority to order property owners not to evict specific tenants. For more information on the ruling in Terkel, see Legal Update, Texas Federal Judge Declares US CDC Residential Eviction Moratorium Unconstitutional.
For more information on state and local residential eviction moratoriums, see Practice Note, COVID-19: Commercial and Residential Tenant Eviction Moratoriums Select State and Local Laws Tracker (US).
Practical Implications
Landlords and tenants need to stay updated on any residential eviction moratoriums. Counsel should review in detail federal laws or regulations in conjunction with the laws and regulations of their specific jurisdiction before commencing an eviction action. As judges rule on more cases challenging the CDC's authority to issue a residential eviction moratorium, there is no finality with some judges upholding the Moratorium (see Chambless Enters. v. Redfield, (W.D. La. Dec. 22, 2020); Brown v. Azar, (N.D. Ga. Oct. 29, 2020)). Counsel can expect to see appeals to any further rulings against the CDC as the Justice Department is already pursuing an appeal of Terkel to the United States Court of Appeals for the Fifth Circuit.
For a continuously updated collection of resources addressing COVID-19, see Practical Law's Real Estate Global Coronavirus Toolkit.