The U.S. Centers for Disease Control and Prevention (CDC) took an unprecedented step – critics say an overstep – recently when CDC Director Dr. Robert Redfield claimed the authority under Section 361 of the Public Health Service Act to halt any evictions across the entire country.
The New Civil Liberties Alliance (NCLA) is challenging the legality of the order in a Georgia case that could decide whether the order has standing anywhere in the country.
The effective date on the CDC's order is claimed to be from Sept. 4 through the end of the year.
While the order attempts to prohibit any property owner from evicting any tenant, it does specifically state that nothing in the order prevents a property owner from charging fees or interest on late rent payments.
However, the order also does not claim to automatically protect individuals from eviction. In order to be covered by the order, each individual maintaining residence at a property must provide a declaration to whoever has the authority to evict them in order to claim protections under the order.
Additionally, the order notes that renters are not excused from following all other rules related to their rental agreement, and that they can be evicted for reasons not related to not paying rent.
The NCLA case challenging whether the CDC even has the authority to create such an order was filed in the U.S. District Court for the Northern District of Georgia on behalf of a Virginia-based landlord.
An NCLA press release states that the CDC’s order, “among other problems — violates the right to access the courts, exceeds limits on the Supremacy Clause, raises serious non-delegation doctrine concerns and implicates anti-commandeering principles and precedents.”
Essentially, despite the Supreme Court of Virginia deciding that an eviction moratorium is no longer justified, the director of the CDC – a non-elected federal employee – has attempted to overrule the authority of the state’s Supreme Court and all other duly appointed state and local-level authorities that have decided against extending eviction moratoriums, according to the press release.
“Agencies have no inherent power to make law, and nothing in the relevant statutes or regulations gives CDC the power or authority to issue an eviction-moratorium order,” the press release states.
Additionally, the NCLA statement says that permitting the CDC order to stand would effectively leave no checks on the powers of federal administrative agencies to rule by decree.
“These are perilous times, and the rule of law is a fragile thing. As sympathetic as many tenants are, the CDC has no power to stop landlords from using state court eviction processes,” Mark Chenoweth, executive director and general counsel of the NCLA, said. “Left unchecked, this abuse of power would set a horrible precedent that would destabilize rental markets for tenants and landlords alike.”