Time to rein in government's pandemic overreach — starting with CDC's eviction ban

Time to rein in government's pandemic overreach — starting with CDC's eviction ban

When the history of the COVID-19 pandemic of 2020 is written, it will need a section on the most counterproductive and overreaching government responses. That list should include the nationwide ban on residential rental evictions imposed by the Centers for Disease Control and Prevention (CDC) in September.

That’s right, public health officials have decided to claim regulatory authority over the residential real estate market. The CDC doesn’t have the authority for such a sweeping declaration, which goes far beyond the agency’s statutory mission to fight infectious diseases. 

Through the end of this year, the CDC’s rule prohibits property owners from evicting qualified renters who fail to pay rent. Renters who meet certain income requirements but are unable to pay rent because of the pandemic must make a formal declaration to their landlord. If the tenant shows that they are entitled to this protection — by, for example, saying they would be homeless or forced to move in with others — the landlord can be barred from beginning eviction proceedings against the delinquent renter.

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Property owners who fail to comply with the CDC’s eviction ban face heavy penalties — including criminal prosecution, possible jail time, and fines of up to $100,000 for individuals and $200,000 for business entities.

According to the CDC, this extraordinary step is needed to curb the spread of COVID-19. The CDC’s rationale is that evicted renters could be forced into shared living arrangements or even crowded into homeless shelters, raising the risk of virus transmission.

Under the Public Health Service Act, the CDC is authorized to take steps to counter the spread of infectious diseases. Yet, the law only authorizes the secretary of Health and Human Services to “provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated … and other measures.” Given the specific and limited nature of the powers listed in the law, it’s difficult to believe that Congress would have sanctioned a nationwide ban on eviction as a reasonable step.

It is Congress, not the CDC or any other executive branch agency, that has the constitutional authority to draft and pass laws. The CDC’s eviction ban was implemented hastily without a period for public comment, and now has the force of law.

Pacific Legal Foundation (PLF) attorneys spoke with dozens of landlords across the country who are struggling to run their businesses with non-paying tenants. Some were in difficult positions. For example, a woman in Louisiana told us that she couldn’t afford her mortgage and was forgoing essentials, such as prescription medications, because of lost rental income.

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PLF filed a lawsuit on behalf of several Ohio and Louisiana landlords who have been adversely affected by the CDC’s ruling. Property owners such as PLF’s clients are actually solving the problem that the government is concerned about. Yet the CDC is now punishing them for saving their money, investing in properties, maintaining those properties, and providing places for people to live. 

The pandemic has invited tremendous expansion of power as bureaucrats and elected officials find themselves in a bidding war to prove who can be toughest on the virus.

In the spring, when the pandemic was gaining ground in an atmosphere of great uncertainty as to its potential scope and impact, most Americans were willing to extend the benefit of the doubt to public health authorities and other government officials who needed to stop the spread of the virus and ensure the health care system wasn’t overwhelmed.

We’re not out of the woods yet, but the good news is that the pandemic’s lethality has proven less severe than many of the original projections. As such, it’s time to dispense with the blank-check attitude under which government officials such as the CDC have attempted to take control of the economy and American life. Instead, government officials should look at ways to repeal harmful, never needed regulations to allow for innovation during this crisis.

Such government overreaction to an emergency serves only to make the public more cynical about future interventions in the name of public health. We’ve seen too many times how emergency measures launched as seemingly reasonable responses to crises become permanent.

It’s time to rein in such abuses and restore the rule of law to our public health responses. That starts with scrapping the CDC’s eviction ban and reestablishing limits on bureaucratic authority.

Steven D. Anderson is president and CEO at Pacific Legal Foundation, and Kent Lassman is president and CEO of Competitive Enterprise Institute.