Biden says CDC’s new eviction moratorium ‘not likely to pass constitutional muster’


On August 4, just days after allowing the U.S. Centers for Disease Control and Prevention’s (CDC) eviction moratorium to expire on July 31, the agency announced it will be instituting a new, more narrowly focused moratorium. As justification for the order, as well as previous versions of the moratorium, the CDC has stated that tenants who are evicted must move and therefore present a significant risk for transmitting COVID-19. 

Like the CDC’s guidance on which individuals should wear masks indoors regardless of vaccination status, the new moratorium will be targeted at counties that have high transmission rates of COVID-19 and will prohibit evictions within those counties. It is expected to cover 90 percent of the U.S. population and 80 percent of counties, and will be in effect until October 3.

The new order applies to counties with “substantial” and “high” rates of COVID-19 transmission. According to the CDC, any county with a transmission level too low to be covered by the order at the time it went into effect on August 3 will become subject to it on the date its transmission rate increases. If a county’s transmission rate falls below substantial, it must maintain that status for 14 days before it is no longer covered by the order.

The CDC updates its county transmission map daily, which means county transmission rates can change rapidly. Maine experienced the turmoil this can cause on July 28 when Gov. Janet Mills announced the state was adopting the CDC’s recommendations for indoor mask-wearing, regardless of vaccination status.

At the time the announcement was made, York and Piscataquis counties were advised to wear masks indoors. By the end of the day, the transmission map had been updated. York and Piscataquis counties had fallen below the transmission rate for which the CDC was recommending indoor-mask wearing and Waldo county’s transmission rate had risen to the substantial category.

As Maine CDC Director Dr. Nirav Shah noted in a press conference about the new mask recommendations, the low population numbers in some Maine counties also means that small fluctuations in case numbers can have big effects on transmission rates.

According to U.S. CDC data collected from July 27 through August 2, Penobscot, Somerset, York, and Lincoln counties had substantial rates of transmission. Only Waldo county had a high rate of transmission. This means the eviction moratorium would apply to those counties, though that could change as the CDC updates its data.

Landlords in Maine have been unable to evict tenants not only as a result of previous CDC moratoriums that were in effect, but as a result of an executive order issued by Mills during the state of emergency.

Mills signed EO 40 FY 19/20 on April 16, 2020. It prohibited landlords from evicting tenants by means not authorized by law, as most courts were closed as a result of COVID-19, and prevented landlords from serving writs of eviction to tenants with more than two-months of unpaid rent even if those evictions were authorized by the courts before March 18.

The order also extended the amount of notice a landlord is required to give a tenant before evicting them, from seven days to 30 days for tenants who have done damage to property and are more than seven days in arrears on rent, and from 30 days to 60 days for tenancies-at-will or evictions without cause. Mills’ executive order was in effect for 30 days after the state of emergency expired on June 30.

At the time Mills issued EO 40, the CDC had not issued its eviction moratorium. Congress had put a moratorium in place through the Coronavirus Aid, Relief, and Economic Security (CARES) Act on March 27, 2020, but it only applied to federal properties and properties that had federal financial backing.

According to Tim Connelly, who serves on the board of the Central Maine Apartment Owners Association and owns approximately 100 rental units in Kennebec county, the legal process which landlords have to go through to evict tenants has further changed.

Not only was the period of notice for eviction extended, but because tenants can request mediation, it’s often a three-step process just for a landlord to talk to a judge. According to Connelly, who says he has tenants who still owe upwards of 6-months in rent, this not only means unpaid rent piles up, but landlords are also bearing the costs of filing fees and other legal fees. 

“I feel sorry for the ma-and-pa shops that only own two units and one side of it isn’t paying,” Connelly said.

Connelly also said he believes his experience is typical of what a lot of landlords are experiencing. Unlike tenants who are not able to pay rent due to financial hardships incurred as a result of COVID-19, landlords have received no help from the government to make up for lost income.

Asked about the CDC’s latest moratorium, Connelly said it’s not good for business and is likely to hold up a court system that’s already overwhelmed by landlords who began using it to try and collect back rent and evict tenants as soon as they were able.

The moratorium was first put in place by Congress as part of the CARES Act on March 27, 2020. It prohibited landlords from initiating eviction proceedings or charging fees or penalties against tenants for nonpayment of rent. The CARES Act eviction moratorium was in place for 120 days after the legislation went into effect, expiring on July 24, 2020.

The law also required landlords to provide tenants 30-days notice of eviction before they could be removed from the property, which meant eviction notices could not be issued until 30-days after the end of the moratorium, on August 23, 2020.

The CARES Act moratorium applied to federal properties, defined as properties that participated in federal assistance programs or had federal financing, and prohibited landlords from charging fees for unpaid rent. 

The CDC issued an order putting its own eviction moratorium into place on September 4, 2020. Though it was initially set to expire on December 31, 2020, it was extended by Congress through January 31, 2021. The CDC then extended the expiration date until March 31, 2021, and again until June 30, 2021. It was extended once more on June 24, and finally expired on July 31.

Unlike the CARES Act moratorium, the CDC moratorium applied to all renters who met the conditions for eligibility set forth in its order, such as earning under $99,000 in salary for 2020 and having made all efforts to obtain government assistance for rent. It also did not prohibit landlords from charging fees for unpaid rent. Neither the CARES Act moratorium nor the CDC’s moratorium forgave rental debts, which means landlords can collect back rent.

Individual landlords who violate the CDC order may receive a fine of no more than $100,000 if the violation does not result in a death, or one year in jail and a fine of no more than $250,000 if a violation does result in a death. An organization that violates the order may receive a fine of no more than $200,000 per event if the violation does not result in a death, or a fine of no more than $500,000 per event if a violation does result in a death.

Both Democrats in Congress and President Biden had been involved in an effort to extend the moratorium past the July 31 expiration date. However, Congress, which had been looking to Biden to extend the CDC’s order, was unable to act before the moratorium expired after the president announced last weekend that any further extensions were the legislature’s responsibility. 

Recent court rulings have confirmed that the CDC does not have the authority to implement its eviction moratorium. In May, a judge for the U.S. District Court for the District of Columbia ruled the CDC’s moratorium was unconstitutional. In June, the Sixth Circuit Court of Appeals also ruled unanimously against the moratorium, declaring it unconstitutional and stating that any further extension would need to come from Congress. 

And, in July, the Supreme Court also ruled by a 5-4 decision that the moratorium was unconstitutional, but left the policy in place because it was set to expire at the end of the month and to facilitate the distribution of rental assistance funds appropriated by Congress.

Speaking about the CDC’s new moratorium, which was issued on August 3, Biden acknowledged that the measure is likely unconstitutional, but signaled this was less important than providing aid to renters.

“Whether that option will pass constitutional measure with this administration, I can’t tell you. I don’t know. There are a few scholars who say it will, and others who say it’s not likely to. But, at a minimum, by the time it gets litigated it will probably give some additional time while we’re getting that $45 billion out to people who are in fact behind in the rent and don’t have the money,” Biden said. 

In Maine, even when the latest moratorium expires, landlords may still have difficulty evicting tenants as a result of a law signed by Gov. Janet Mills on June 24, which goes into effect in October, 90 days after the legislature’s adjournment sine die on July 19. 

LD 1508, sponsored by Sen. Anne Carney (D-Cumberland), attempts to reduce homelessness by reducing the number of evictions through a mediation program in cases of forcible entry and detainer action. It requires forcible entry and detainer actions to be made in the same manner as other civil actions, unless there are at least three good-faith actions to serve a defendant on three different days.

A landlord seeking eviction is required to mail the summons and complaint to the tenant both through first-class mail and by leaving them at the tenant’s last known address. A landlord is also required to file an affidavit with the court to demonstrate compliance. For residential tenants, the landlord has to attach to the complaint and summons to a one- to two-page form which notifies the tenant about the court procedures that need to be followed before they are required to vacate. It must also provide a list of rental assistance programs and legal representation options available to the tenant, as well as a court-approved form to request mediation.

A committee amendment to the bill would have appropriated $1.5 million dollars from the General Fund in fiscal years 2021-2022 and 2022-2023 to be distributed to the Maine Legal Services Commission to provide legal representation to low-income residents in the state who are facing eviction actions. However, this provision was removed by a Senate amendment also sponsored by Carney.

In a press release shared by the Maine Senate Democrats, Carney touted the bill as a way to make sure renters have access to legal services.

“When a tenant is facing an eviction, we should make sure they know their rights and have sound legal advice to help them navigate the process and hopefully come to an agreement with their landlord,” Carney said.

Carney also announced that, in response to the bill, MaineHousing and Pine Tree Legal Assistance, a nonprofit law firm that provides free legal assistance, have formed a partnership to provide tenants with the information they need to prevent being evicted. MaineHousing will use federal Emergency Assistance Funds for this purpose.

Photo: Gage Skidmore from Surprise, AZ, United States of America, CC BY-SA 2.0, via Wikimedia Commons


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