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Left Out in The Cold: The Eviction Moratorium’s Deficiencies and Implications for the Administrative State

By: Margaret Shields

October 14, 2020

Critics have called the Trump Administration “bad” at administrative law, and not without reason. Missteps include a failed, contentious attempt to rescind the Deferred Action for Childhood Arrivals program (“DACA”)1See Dep’t of Homeland Security v. Regents of Univ. of Cal., 140 S. Ct. 1891 (2020). and the inadequately justified addition of a citizenship question to the census,2See Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019). both of which disregarded the baseline requirements of the Administrative Procedure Act (“APA”). The choices that agencies make affect how the public perceives the administrative state’s political leanings, democratic legitimacy, and trustworthiness. With its recent eviction moratorium, the Trump Administration once again took agency action that degrades the legitimacy, accountability, and expertise of administrative state.

On September 1, 2020, the Centers for Disease Control and Prevention (“CDC”) ordered an eviction moratorium until December 31, 2020.3Temporary Halt in Federal Evictions to Prevent Further Spread of Covid-19, 85 Fed. Reg. 55,292 (September 1, 2020) [hereinafter “Eviction Moratorium”]. The order bans landlords from seeking eviction in states where there are positive COVID-19 cases but does not pre-empt state programs if they already had an eviction ban in place. The order includes a number of requirements for obtaining eviction relief: using best efforts to pay rent, earning less than $99,000 annually, and making certain declarations about inability to pay and likelihood of becoming homeless if evicted. The order only protects against eviction for non-payment of rent; it does not protect tenants being evicted for a litany of other issues including building code violations. Those seeking relief must provide this paperwork to the landlord, and there are criminal fines for landlords who do not comply.4Id. at 55,292–96. The moratorium does not fall within CDC’s traditional quarantine authority or its role in guiding state and local public health responses.5See Michael R. Ulrich & Wendy K. Mariner, Quarantine and the Federal Role in Epidemics, 71 SMU L. Rev. 391, 433–34 (2018); see also 42 U.S.C. § 246 (giving the Secretary of Health and Human Services power for interstate and foreign quarantines); 42 U.S.C. § 243 (1985) (asserting that the Secretary’s role is to assist, cooperate and advise states in implementing emergency public health measures). Furthermore, the order leaves a major issue unaddressed: It does not relieve renters of their rent obligations or fees they would incur for paying late rent.6See generally Eviction Moratorium. Thus, the moratorium merely forestalls the inevitable: likely evictions for 30 to 40 million renters, indebted by accumulated payments and fines, after the presidential election and in the middle of winter.

Others have already addressed aspects of the order’s legality.7See Roderick Hills, Regulatory Authority in a Crisis: The Limits of CDC’s Eviction Moratorium, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2020); Editorial, Trump’s Housing Seizure, Wall St. J. (Sept. 3, 2020), https://www.wsj.com/articles/trumps-housing-seizure-11599174672. This post will explore the order’s possible ramifications for the administrative state. On its face, this order could represent a promising trend in which CDC takes a more active role in addressing the social determinants of health in pandemics.8See Wendy K. Mariner, Beyond Lifestyle Governing the Social Determinants of Health, 42 Am. J. L. & Med. 284, 288 (2016) (“there is widespread recognition of the social determinants of health—the social, economic, educational, environmental, political and cultural conditions that influence the health of populations”). However, because of the Trump Administration’s choices, the order instead may instead erode public trust, in the administrative state generally, and CDC specifically, contributing to a backlash against administrative authority and hampering the federal government’s ability to respond to future public health threats. This action further contributes to already eroding trust in the administrative state during the tenure of the Trump Administration.

CDC has broad authority to promulgate regulations in a national public health emergency.9The Secretary of HHS and CDC have authority to “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,” and “shall also assist States and their political subdivisions in the prevention and suppression of communicable diseases and shall cooperate with and aid State and local authorities in the enforcement of their quarantine and other health regulations,” and lastly, “extend temporary (not in excess of six months) assistance to State or localities in meeting health emergencies of such a nature as to warrant Federal assistance.” 42 U.S.C. § 243. Early federal quarantine laws provided federal assistance for state-enacted quarantines.10See Katherine Vanderhook, A History of Federal Control of Communicable Diseases: Section 361 of the Public Health Service Act 6–7 (2002), available at http://nrs.harvard.edu/urn-3:HUL.InstRepos:8852098. However, beginning with the passage of the modern Public Health Service Act in the 1940s, the federal government took a more active position. The Act granted the Surgeon General power to impose foreign quarantines, impose state quarantines, and to override state quarantines.11Id. at 58.

During the Ebola crisis, CDC’s failure to institute quarantines led to a backlash against its authority, with states disregarding CDC guidelines and imposing stronger quarantines than CDC recommended.12See Ulrich & Mariner, supra note 5, at 396. In response to specific failures in their Ebola crisis response, the Department of Health and Human Services (“HHS”) and CDC promulgated new regulations expanding their authority and codifying CDC pandemic preparedness practices (the “2017 Rule”).13Congress also expanded CDC’s ability to respond to biological terrorist threats in the wake of 9/11 and anthrax scares. See Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Pub. L. No. 107-188 § 103 (2002) (giving HHS and CDC the authority to expand laboratory capacity to meet threats of biological and chemical terrorism and other public health emergencies).

The 2017 Rule purported to create transparency in CDC’s plans for a pandemic response and to give the public an opportunity to comment on these practices.14See Ulrich & Mariner, supra note 5, at 392–93. In response to failings during Ebola, the new regulations required better airline reporting of ill passengers, urged more airline cooperation with quarantine procedures, clarified CDC’s ability to quarantine those with potential exposure, and included new due process protections.15See Control of Communicable Diseases, 82 Fed. Reg. 6,890, 6,891 (Jan. 19, 2017) [hereinafter, “2017 Rule”]. However, since Ebola remained a contained threat, the regulations did not contemplate CDC’s power to institute widespread quarantines of all individuals over broad geographic areas, the kind that would be most useful in responding to COVID-19.16Id. (focusing on a change that ensures due process rights for quarantined individuals).

Thus, the 2017 Rule did not address the unique social vulnerabilities that a crisis like COVID-19 exacerbates. For example, the regulations did not adequately address how individuals in quarantine would be compensated for the time they missed from work, whether they would receive financial assistance for their medical care, or what other social support measures would be provided to families and communities.17Ulrich & Mariner, supra note 5, at 396. Public comments during the 2017 rulemaking process raised the question of financial assistance for housing and medical costs imposed by federal quarantine authority.182017 Rule at 6,918 (rejecting the assertion made in comments that CDC was ethically obligated to cover “medical expenses, housing, costs, and other necessities for individuals or groups subject to deprivations of liberty”); id. at 6,971 (enumerating what costs CDC would cover as the payer of last resort). Contemplating isolated quarantines, CDC maintained that it would have discretion to cover medical costs as the “payer of last resort” and that payment should come primarily from health insurance or another entity that had a contractual obligation to assume the expenses.19Id. at 6,918. CDC left the issue of reimbursement for any other incurred expenses during these individual quarantines unresolved. Thus, CDC’s rulemaking process did not address what measures CDC should take in dealing with the problems of mass unemployment and potential evictions that currently face the country.

CDC must exercise its authority with an eye towards its specific expertise and transparency, but it failed to do so in issuing this order. CDC has no expertise, for example, in housing policy generally, the specific ramifications of eviction, or how interested parties may raise property-based challenges to the order. CDC’s lack of expertise led to major oversights, such as its failure to address the central issue of rent payments. This leaves millions of renters deeply concerned about how they will repay their accumulated debts in December. Because renters around the country may be skeptical of CDC’s ability to protect them, they may not seek the order’s protections.20Additionally, CDC’s reliance on criminal penalties to enforce its authority further risks its legitimacy in the current climate and reckoning with the inherent inequalities of criminal enforcement around the country. Furthermore, the agency did not take into account transparency and accessibility for the process of fighting evictions. Therefore, renters may not understand the procedural requirements of the rule or may not show up in court to defend their rights. Because the order imposes administrative burdens and eligibility requirements on tenants, it risks undermining any trust tenants may have in the ability of the administrative state to protect them. Lastly, the order failed to provide any assistance or remedy for small landlords who would not be able to meet their own mortgage obligations. Notably, CDC’s method bypassed notice-and-comment procedures that could have allowed housing, health, and small business advocates to force CDC to at least address and account for these issues.

CDC issued the eviction moratorium as an emergency order pursuant to an existing regulation that allows CDC to issue orders overriding insufficient state action regarding the spread of communicable diseases – a perfectly legal action under the APA.2142 C.F.R. § 70.2. However, the existing regulation under which CDC issued its order contemplates communicable diseases spread by insects and pest control, not airborne diseases that can be spread via overcrowded housing. Alternative procedures available to the CDC would have enhanced the legitimacy of the order by providing the opportunity for notice and comment—particularly on the housing issue—while still responding in a timely manner. 22See Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 Harv. L. Rev. 1511 (1992). For example, the APA provides a special procedure to promulgate interim final rules in the case of emergencies.23See Edward Stilgitz, Delegating for Trust, 166 U. Pa. L. Rev. 633, 663–64 (2018) (suggesting that public trust in the administrative state derives from the fact that there are procedures subject to review and that this legitimizes administrative action, even more so than legislative action). These rules do not strictly have to follow notice and comment, but they are still subject to notice and comment within some period of time.24Administrative Procedure Act, 5 U.S.C. § 553(b) (an agency may be exempt from notice and comment requirements for “good cause”). CDC issued earlier COVID-19 responses as interim final rules.25See e.g., Control of Communicable Diseases; Foreign Quarantine: Suspension of Introduction of Persons Into United States From Designated Foreign Countries or Places for Public Health Purposes, 85 Fed. Reg. 16,559 (Mar. 24, 2020). Even though the rules go into effect without notice and comment, the process of notice and comment in and of itself increases legitimacy. For example, when promulgating the 2017 Rule, CDC recognized that opening its current practices to notice and comment made the policies transparent and understandable for the public, which would help it re-establish credibility.262017 Rule at 6,891 (“This final rule will enhance HHS/CDC’s ability to prevent the introduction, transmission, and spread of communicable diseases into the United States and interstate by clarifying and providing greater transparency regarding its response capabilities and practices.”). CDC could have adopted a similar approach here, using an interim final rule instead of an administrative order to legitimize this novel approach to the housing crisis.

Using the interim final rule procedure, CDC could have issued a new regulation that specifically gave the Secretary authority to issue orders related to housing issues in a public health crisis. The interim final rule process would then give the public and regulated parties some opportunity to comment on the issues that CDC should consider in promulgating this order. The agency would then have opportunity to respond and amend its position to these concerns. Importantly, the APA actually requires the agency to respond to all the issues raised in comment.27See United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240 (2d Cir. 1977) (finding that, under the APA, agencies were obligated to address major concerns raised in the comment process). This method could have generated public buy-in by accepting comments from those interested in and affected by the ban and allowing CDC to bring its expertise to bear in highlighting the connection between housing and public health. Instead, CDC relies on a pre-existing regulation focused on insect-borne communicable diseases. CDC did not provide notice or opportunity to comment on its housing-related authority for this regulation or any of the 2017 regulations. In promulgating an order that is outside of the realm of what the public had opportunity to provide comment on in previous rulemaking processes, CDC risks compromising the democratic legitimacy of the administrative state.

Moreover, the façade of even a temporarily effective policy has already begun to crack. On October 10, under pressure from a barrage of lawsuits against the order, CDC issued guidance further limiting the order’s influence. The new guidance allows landlords to begin eviction actions immediately, even though the actual evictions cannot take place until January. This could intimidate tenants into avoiding invoking their right to stay. The administration’s changing stance confounds renters who may already be unsure of their rights under the original order. The disorder further hinders tenant advocates from developing the best strategies to protect their clients. This uncertainty and administrative chaos further undermine the legitimacy and efficacy of the order. Furthermore, in Mississippi, the local government invoked its own administrative policy conflicting with the order. It established a system for continued eviction hearings and is allowing landlords to challenge a tenant’s ability to pay in court by requiring certain financial documents. While a far-reaching action like an eviction ban was likely to generate resistance, the thin legitimacy of CDC’s order adds ammunition for these attacks. CDC has no expertise in housing law or policy, and the agency never adequately considered how to guarantee rights or protections for either landlords or tenants that would have bolstered the defense of the order. As legal challenges to the order escalate, eroding trust in the government and risking the livelihoods of millions of renters and small landlords, the government’s ability to adequately respond to the housing crisis through regulatory policy wanes.

Lastly, the Trump Administration could have prodded other agencies to step up and address the eviction problem. The August 8, 2020 executive order also required the Treasury Department and the Department of Housing and Urban Development (“HUD”) to study the eviction crisis. The order directed the Secretary of HUD to take action including “providing assistance” to those in public housing. The order directed the Secretary of Treasury to review resources that may prevent evictions and foreclosures.28Executive Order on Fighting the Spread of Covid-19 by Providing Assistance to Renters and Homeowners, August 8, 2020. Either of these agencies could have provided a more appropriate source for an eviction moratorium and the provision of rental assistance.29For example, HUD previously issued a moratorium on mortgages and evictions for single family homes with federally backed mortgages. HUD has also released more funding for states under the Community Development Block Grant Program. See Brian Montgomery, Assistant Secretary for Housing, Mortgagee Letter 2020-04 (March 18, 2020). Notably, this letter left open the opportunity for notice and comment. Id.

Nevertheless, President Trump took full credit for remedying the housing crisis even though no agency had promulgated an eviction moratorium and there was no enforceable policy. While CDC’s moratorium did temporarily alleviate the specter of eviction for millions of renters around the country, the manner in which the Administration approached the problem prioritized a fast and loose solution, rather than a thoughtful approach that would further the credibility of the administrative state and allow agencies like CDC better respond to future emergencies.


Margaret Shields, J.D. Class of 2022, N.Y.U. School of Law

Suggested Citation: Margaret Shields, Left Out in The Cold: The Eviction Moratorium’s Deficiencies and Implications for the Administrative State, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2020).