How the CDC Became America’s Landlord
October 3, 2021 |
At age 28, Esteban Rivera purchased his first home, a duplex in Bridgeport, Connecticut. It was just off Long Island Sound and a quick 15-minute commute to his job at a home remodeling company. The idea was to live in one of the units while continuing to rent out the other apartment to the tenants—a couple with two kids—that he'd inherited from the previous owner.
This straightforward plan was upended by some historically bad timing. Rivera purchased his home in March 2020, just as the pandemic hit. "Literally the world stopped," he said. "Nothing mattered."
Rivera was temporarily furloughed from his job. Shortly thereafter his tenants, now also out of work, told him that they couldn't make April's rent payment of $1,375.
Over the next several months, Rivera says, they were able to make things work. He used their security deposit to cover one month of missed rent, and they eventually used a stimulus check from the federal government to make a partial payment in July. His employer called him back to work in June. In September, Rivera even managed to secure one of his tenants a job at the same remodeling company he worked at, hoping that would set things right.
Instead, their partial rent payments became even less frequent, and the back rent owed continued to mount. Eventually it totaled close to $12,000.
"I understand that they were trying to make their own ends meet too," he says, "but it was at my own expense and my own detriment." Rivera ended up moving back in with family in New York. He rented the unit he'd intended to make his home to his cousin to help cover the financial strain caused by a non-paying tenant.
In more normal times, Rivera would have been within his rights to evict his tenants for nonpayment of rent. But an eviction moratorium imposed by Connecticut's Democratic governor, Ned Lamont, in April 2020 banned any landlord from serving a "notice to quit," the first step in Connecticut's eviction process, until July 2020. It wouldn't truly end until July 2021.
Lamont's order was not unique. All across the country, mayors, city councils, governors, and judges issued emergency halts to evictions in the early days of COVID-19. The immediate justification was to keep hard-pressed renters, thrown out of work by the global pandemic, from also losing the home they'd need to safely socially distance.
These eviction moratoriums were dropped into place with virtually no public discussion of the limits of bureaucratic power, the rights of private property holders, the unintended consequences, or any other ramifications of such moves. Governments simply asserted that they had these powers and then used them.
The moratoriums—like so many other extreme COVID-era measures that were supposed to be an emergency stopgap—soon became a seemingly permanent feature of public policy. In the initial months of the pandemic, 43 states adopted some form of eviction restriction, according to the Eviction Lab at Princeton University. By September 2020, the Centers for Disease Control and Prevention (CDC), leaning on a novel, near-limitless interpretation of its own powers, put a national moratorium in place. States could still implement their own eviction bans, but only if they were stricter than what existed at the federal level.
As the pandemic ran its course, Congress appropriated $46 billion to help distressed renters and landlords. And as COVID case counts, hospitalizations, and deaths fell in spring 2021, following the rollout of the vaccines, many public health restrictions on economic and social activity were lifted.
Yet eviction moratoriums at the state and local levels, including in California and New York, remain stubbornly in place. Some of them aren't scheduled to expire until well into 2022, more than two years from the onset of the pandemic.
On a macro level, these policies represent an envelope-pushing expansion of the government's ability to intrude on private property rights in the name of public health and economic relief, despite muddled evidence for their effectiveness. And while on a micro level they've unquestionably stopped some tenants from losing their homes, they've done so at the expense of landlords who are often also having trouble getting by.
The pandemic turned America's public health bureaucracy into its national landlord. America's rental property owners were left paying the price.
Shelter in Place
Prior to the pandemic, pauses on evictions were both rare and limited, occasionally imposed in the wake of natural disasters or, in a handful of cities, during cold or inclement weather. The idea was to not kick people out onto the street when doing so would put them in physical danger.
There's a reason that these pauses are so rare. A fundamental part of owning a property is the right to exclude people from it—particularly people who renege on their promise to pay for its use. The ability to evict delinquent tenants is a crucial protection for the estimated 10 million individual landlords who own about 40 percent of the country's rental housing stock. These mom-and-pop operations manage just two units on average and can be devastated financially when a tenant stops paying.
COVID-19 represented a nationwide natural disaster. With social distancing as their No. 1 goal, many officials reasoned, virtually any activity outside the home had to stop. Removing people from their houses was seen as a violation of that mandate. You can't shelter in place if you have no shelter.
Enter the eviction moratoriums, which unfolded in three successive stages. The first stage, in spring 2020, saw policy makers across the country impose emergency eviction bans to deal with an immediate catastrophe. The second stage, over summer 2020, saw a divergence: Some states ended their moratoriums as part of an attempt to return to normal, while others extended them in preparation for a long war with the virus. The third stage kicked off in September 2020 when the CDC declared a countrywide moratorium that nationalized the conversation. That lasted until August 2021, when the Supreme Court struck down the order as a clear example of executive overreach.
During the frenzied first stage, a number of states' eviction moratoriums were effectively imposed as a consequence of courthouses physically shutting down. (This was the case in Connecticut, where Rivera's property is located.) But in some places, the moratoriums preceded the lockdown orders that characterized the early days of the pandemic. On March 13, for instance, Mayor London Breed issued a ban on residential evictions for San Franciscans financially affected by COVID-19. It wasn't until March 16 that the city's public health officer imposed its first shelter-in-place order.
In late March, Congress passed the $2.3 trillion Coronavirus Aid, Relief, and Economic Security (CARES) Act. It included a moratorium on evictions at all properties with a federally backed mortgage or which were participating in some other federal housing program. That covered about 28 percent of rental properties.
Proponents offered two rationales for why these various moratoriums were necessary: Evictions would lead to more spread of the coronavirus, and the economic effects of the coronavirus would lead to more evictions.
"Many residents of Connecticut are experiencing or will experience a significant loss of income as a result of business closures, reduced work hours or wages, or layoffs related to COVID-19, all of which affect their ability to pay their rent, and thus leave them vulnerable to eviction," reads the April 10 executive order banning almost all residential evictions in Connecticut. "Minimizing evictions during this public health period is critical to controlling and reducing the spread of COVID-19."
There was also a sense at the time, expressed by politicians from both sides of the aisle, that requiring people to continue to worry about making rent or mortgage payments was an unfair thing to do when the whole world was falling apart.
When then–Housing and Urban Development Secretary Ben Carson temporarily banned evictions and foreclosures at single-family properties with a federally insured mortgage in March 2020, he expressed a hope that doing so would "provide homeowners with some peace of mind during these trying times."
"People must be able to focus on our community's health—slowing the virus's spread—and not on economic survival," said California state Sen. Scott Wiener (D–San Francisco) the same month, calling for a nationwide moratorium on residential and commercial evictions. "We need to support each other and give people leeway to focus exclusively on keeping healthy."
Two other factors enabled the rapid spread of such moratoriums. The first was that mayors and governors had claimed sweeping emergency powers, which meant they could unilaterally make policy without the traditional need to whip votes or logroll support. So moratorium opponents had to depend on the courts, which have proved broadly deferential to emergency power claims. "The thing that catches the courts' attention is [governments' argument] that 'this is a pandemic, you should defer to our judgement on how to resolve the serious health crisis here,'" says Ethan Blevins, an attorney with the Pacific Legal Foundation, who says courts have uniformly ruled in favor of local and state moratoriums.
Second was the lack of a direct price tag. Eviction moratoriums cost the government nothing—at least not right away. Instead, they shift the financial burden of nonpaying tenants onto landlords, who largely don't have the option of taking their product out of circulation.
Most of the eviction moratoriums issued in the beginning of the pandemic were set to expire relatively quickly, often within 30 days. Others, such as the one in the CARES Act, were to sunset in July. By then, lawmakers reasoned, we'd surely have gotten a handle on COVID-19.
But as with lockdowns, the pandemic created path dependency. The moratoriums started as temporary measures. They soon became a main feature of the government's response to the virus.
The Eviction Wave Pool
Almost as soon as the eviction moratoriums snapped into place, activists, academics, and the media began warning that a giant wave of evictions would crest as soon as the moratoriums were allowed to expire.
"There will be an enormous number of eviction cases, and a tsunami of homeless people," Gary Blasi, a professor of law at UCLA, told LAist in April 2020. "We will have an avalanche of evictions across the country," said Columbia Law School professor Emily Benfer to The New York Times that May.
In June 2020, the Minneapolis Star Tribune predicted a "flood" of evictions if Minnesota's emergency order forbidding evictions was allowed to lapse. Housing activists told the Concord Monitor in New Hampshire that a "perfect storm" was on the horizon if expanded unemployment benefits and an eviction moratorium both expired at the same time.
By mid-summer 2020, it was clear that the pandemic was going to be more than a passing concern. The activists and officials who had supported eviction moratoriums to deal with the coronavirus and its economic fallout in March were now committed to keeping those policies in place. The deteriorating economy, they believed, made their argument stronger. Tenants had accumulated a huge amount of back rent. Once the first rounds of federal aid ran out and moratoriums were lifted, many would be unable to pay.
"You could use whatever natural disaster metaphor you want—there's the avalanche, the tsunami—and I think we are going to see that level of displacement," economist Sam Gilman, co-founder of the Colorado-based COVID-19 Eviction Defense Project, told Reason in July 2020, the same month the expanded unemployment benefits and limited eviction moratorium included in the CARES Act were set to end.
Using data about people's income, housing costs, savings, and pandemic-era government support, Gilman estimated that as many as 23 million renters would be at risk of eviction come the end of September.
A subsequent blog post at the Aspen Institute—co-authored by Gilman, Benfer, and other housing academics and activists—speculated that 30–40 million renters could be at risk of eviction by the end of the year.
That estimate would appear in much of the press coverage on evictions going forward, cited by activists and policy makers alike to justify the continued extension of eviction moratoriums.
It was a meaningless figure.
"That's like using the number of drivers to say how many people are at risk of dying in a car accident," says Salim Furth, a housing researcher at George Mason University's Mercatus Center. "Yes, everyone who gets in a car is at risk of an accident, but that doesn't give you any sense of the number of people who will actually die in a car accident today."
Far from creating a surge in evictions, Furth argues that the economic dislocation of the pandemic would have led to no increase, and maybe even a reduction, in the number of landlords looking to give nonpaying tenants the boot. In an environment where most everyone is out of work, he says, landlords have an incentive to keep previously good-paying renters around on the assumption that they'll in time find a job again and return to paying their bills. Meanwhile, evicting a tenant leaves the landlord with the costs of turning over the unit and an expensive search for a replacement—and in an environment when many other prospective renters are also unemployed.
Data from late summer 2020 bear this out. The CARES Act's moratorium had expired, but the CDC's national moratorium had not yet gone into effect. Many states and localities began letting evictions resume.
A Government Accountability Office report found that moratoriums did reduce the number of evictions. But evictions were also down in areas without such policies. "When the CARES Act moratorium expired during the fourth week of July 2020, jurisdictions with an active local moratorium had about 88 percent fewer eviction filings (at the median) than in the fourth week of July 2019, whereas those without an active local moratorium had about 61 percent fewer," reads the report.
In a handful of cities across the country, eviction filings did spike above previous averages following the expiration of the state and CARES Act moratoriums. But they were also quick to fall back down to below those averages. The pattern suggests the eviction increases that were observed in late summer 2020 were a result of the moratoriums themselves. The bans created a backlog of eviction cases that would have otherwise been processed over a period of several months.
By the end of the summer, two Americas were emerging. In many blue states, moratoriums that were set to last a couple of months were now being extended well into the fall. Many Republican-controlled states, meanwhile, were letting their eviction bans expire. The stage was set for a natural experiment in the effectiveness of these policies at keeping people in their homes and safe from COVID-19.
That experiment was upended, in September 2020, when the Trump administration declared the first-ever nationwide eviction moratorium covering all private rental properties.
A Reasonable Necessity?
Despite the evidence that an eviction apocalypse was not right around the corner, housing activists spent the end of summer 2020 sounding an increasingly alarmist note about the slow erosion of emergency tenant protections.
By August, there were 31 states without a state-level eviction ban. The CARES Act moratorium had expired. Relief bills that would have created a nationwide moratorium and appropriated billions for rental assistance were stalled in Congress.
"Without a significant and sustained federal intervention, America will experience an increase in homelessness the likes of which we haven't seen since the Great Depression," said Diane Yentel of the National Low Income Housing Coalition (NLIHC) at the time.
The Trump administration listened. In September, the CDC—citing the Aspen Institute's estimate that 30–40 million renters were at risk of eviction—issued a moratorium covering all rental properties across the country. So long as a renter signed a financial hardship declaration and made less than $99,000 a year ($198,000 for couples), he or she could not be evicted for nonpayment.
It was an unprecedented move. The agency justified its actions with an incredibly broad reading of its own powers under the 1944 Public Health Service Act and subsequent federal regulations, which allow the CDC director to take actions he or she deems "reasonably necessary" to prevent the interstate spread of communicable disease.
The law itself lists a few specific examples of the powers it gives federal health authorities, such as the ability to destroy livestock or fumigate buildings. Given the potential for evicted renters to spread COVID-19 to their next living arrangement, the CDC reasoned, an eviction moratorium could also be considered necessary.
Critics of the CDC's order noted that this rationale essentially gave the agency boundless authority to make whatever rules it wanted in the name of public health. "I'm not being hyperbolic when I say that if [the CDC's] interpretation is accepted, it means the CDC can issue any of the same orders at all that any of the governors across the country have done," Luke Wake, an attorney with the Pacific Legal Foundation, told Reason in October 2020. "Business closures, micromanaging the economy, what we can do in our private circles. That would all be under their purview."
Having claimed the extraordinary power to ban evictions, the federal government soon proved unwilling to let it go. The CDC's moratorium was originally supposed to stop at the end of 2020. A COVID relief bill passed by Congress that month extended it until the end of January 2021. Under the new Biden administration, the CDC pushed the expiration date back again—first through the end of March, then through the end of June, and finally to July 31. When it issued that last extension, the CDC put out a statement saying that this was intended to be the final one.
An upshot of all these extensions was that critics of the moratorium had more time to file lawsuits. And file they did.
Landlords, real estate agents associations, and property rights advocates (including the Pacific Legal Foundation) unleashed a blizzard of litigation against the agency's power grab. While similar complaints had been swatted away at the state and local level, federal courts proved willing to put some outer bounds on the government's pandemic powers.
In February 2021, a district court judge in Texas ruled that the CDC's order was not just illegal but unconstitutional, reasoning that neither the agency nor Congress had the power to regulate a wholly intrastate activity such as evictions.
As of July 2021, five other federal courts had likewise sided against the agency. Most of their rulings were more limited than the Texas judge's, finding that the Public Health Service Act did not in fact give the CDC the power to declare an eviction moratorium. That would have to be done by Congress. Three federal courts had ruled in favor of the agency.
In June 2021, the Supreme Court voted 5–4 to not take up an emergency petition from a trade group representing Alabama realtors challenging the federal moratorium. Providing the crucial fifth vote to leave the moratorium in place was Justice Brett Kavanaugh.
In a short opinion, Kavanaugh said he thought the CDC had exceeded its legal authority when it issued an eviction ban. Two issues had stopped him from also voting to block the moratorium. The first was that Congress had passed two bills collectively appropriating $46 billion in rental assistance for tenants and landlords to prevent evictions. The second was that the moratorium was supposed to expire within a few weeks anyway.
Kavanaugh reasoned that the moratorium should be allowed to run its course, which would allow more time for rental assistance to reach its intended targets before evictions resumed. At the same time, he wrote that "clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31."
Kavanaugh was mistaken to take the Biden administration at its word when it said it would not extend the moratorium again. On August 3, three days after the federal eviction order expired, the CDC issued a new moratorium.
The hope was that this would give state and local governments more time to set up their own rent relief programs. But that turned out to be a tall order for most of the country.
The controversy over eviction moratoriums often looks like a battle between tenants and landlords. But despite their apparent divisions, both agreed on what they ultimately wanted: billions in federal rental assistance. "The eviction crisis is a cash crisis. Tenants can't pay their rent. Landlords don't have rental income," Gilman put it in July 2020. "Cash is the solution."
Groups ranging from the NLIHC to the National Apartment Association, which represents landlords, endorsed calls for rental assistance. The back-to-back federal COVID relief bills passed in December 2020 and March 2021 granted a respective $25 billion and $21 billion in funding for Emergency Rental Assistance (ERA) programs.
The U.S. Treasury would distribute this money as block grants to states and some higher-population localities. These grantees would then be responsible for setting up their own programs to get that money to landlords and tenants to cover back rent and utilities.
Support wasn't universal. Some critics argued emergency unemployment benefits and stimulus checks had done enough to keep people afloat. Others said that in the absence of top-down rent relief, landlords and tenants would have an incentive to work out their own deals involving payment plans or rent forgiveness. Implementation timelines would also be a factor: By the time the checks started to flow, an economic recovery was underway.
On top of all that, the federal government was already in the middle of an unprecedented multi-trillion-dollar debt-financed spending spree in response to the pandemic. The rent bailouts added another $46 billion to the pile. Where was the money going to come from?
Still, landlords and tenants both seemed to have gotten what they wanted. But the actual implementation proved a disaster.
By late January, the Treasury had dispersed 99 percent of the first $25 billion of ERA money to states and localities. By the end of June, states and localities had managed to get only 12 percent of that money to landlords and tenants.
There are multiple reasons that getting funds out the door proved to be a challenge. Some 60 percent of state and local officials tasked with administering the ERA funds complained of a lack of staff in an April 2021 survey, while close to half said they faced technical hurdles launching new application systems. Low participation rates from both landlords and tenants were also an oft-cited explanation for the slow dispersal.
Tenant advocates claim that exclusively online applications and an overly bureaucratic process have driven down renters' ability to claim benefits.
"In Connecticut you have to go online to apply. That is causing a lot of problems for people because of the digital divide," says Erin Kemple of the Connecticut Fair Housing Center. "You're asking the group of people who need assistance to use a system that they generally don't have access to."
The application process takes about 90 minutes, Kemple adds, and requires the person to upload pictures of a government ID and of documents for income verification. These requirements can pose a serious barrier, she says.
Landlords, who could apply for assistance on behalf of their tenants, were also expressing frustration.
"I applied for rental assistance in March," Rivera says. "To this day, I haven't had anyone call me, tell me I'm missing documents, anything like that." As of mid-July, he was still waiting to hear about his application.
Other property owners were deterred from participating in Connecticut's rental assistance program because of its requirement that they drop any eviction proceedings as a condition of getting aid.
"In Connecticut, it's usually an average of three months to evict someone," explains Yona Gregory, an eviction attorney in the state. A landlord who accepts aid, she says, runs the risk that their delinquent tenant will immediately go back to not paying their bills. "You've got to restart the eviction and now you're looking at three, four months of nonpayment. That kind of puts you back where you started."
By mid-August, Connecticut had given out $60 million in rental assistance, about 14 percent of the ERA funding the state had been allocated. That makes it a pretty poor performer—but hardly the worst. Florida had spent only about 2 percent of the $871 million it had received from the first tranche of ERA money by the end of July. New York did an even worse job, spending only about $2 million of its $2.7 billion in ERA funds as of that point.
The snail's pace at which local and state governments have managed to get rent relief out the door has become a justification for yet another extension of the eviction moratoriums. After California extended its partial moratorium through September 2021, Assemblymember David Chiu (D–San Francisco) said in a statement that "removing eviction protections now, while billions of rent relief dollars are still available, would be a disaster and exacerbate our homelessness crisis."
The government's seemingly endless ability to extend those eviction moratoriums has, in turn, reduced the urgency that government officials feel to get money out the door.
"The governor and the City Council have said, well, we can take our time, because we've just shifted the burden onto landlords," says John Tondini, an attorney representing several landlords suing the city of Seattle over aspects of its eviction moratorium. "Here we are, more than a year into this situation, and they're still not rolling out the money. The thing they should have been doing from day one, they're still not doing it."
Temporary Emergency Forever
When eviction moratoriums popped up all over the country at the beginning of the pandemic, they were billed as a temporary emergency measure intended to help stop the spread of COVID-19. But over the last year and a half, the rationales have multiplied—from arresting a public health threat to preventing a wave of evictions to buying time for billions in rental assistance (itself an unprecedented crisis-response policy) to reach beneficiaries.
This has been profoundly damaging in two important ways. First, at the state and local level, politicians have discovered a cheap, easy, court-supported way of providing economic relief. It's unlikely that they'll be less willing to use that power in the future. Thus, landlords' fundamental right to decide who comes onto their property and under what conditions they stay there has been permanently eroded.
Second, at the federal level, there has been an unprecedented executive power grab. The CDC has claimed the authority to do anything "reasonably necessary" to stop the spread of a communicable disease. If that reasoning could justify an eviction moratorium to stop COVID-19, it could plausibly be stretched to justify any intervention in response to any transmissible disease, regardless of how severe it might be. Might a future administration impose an international travel ban to stop the common cold? Under the logic used to rationalize the eviction moratorium, that would seem to be an option.
On July 31, the CDC moratorium was finally allowed to lapse. For the first time in almost a year, large swaths of the country were covered by no ban on evictions. The expiration set off a panicked pressure campaign from progressive activists and lawmakers: A surge in COVID-19 cases caused by the delta variant and the continued failure of states and localities to disburse the billions in rent relief funds they'd been given, they said, meant the moratorium must be reinstated for a few more months at least.
For a couple of days, President Joe Biden and members of his administration—citing Kavanaugh's unwillingness to tolerate an executive branch–issued moratorium past July 31—claimed they had no legal authority to re-up the CDC's eviction ban. "The president has not only kicked the tires; he has double, triple, quadruple checked. He has asked the CDC to look at whether you could even do a targeted eviction moratorium—that just went to the counties that have higher rates—and they, as well, have been unable to find the legal authority," White House adviser Gene Sperling said at a press conference on August 2.
One day later, the administration went ahead and issued just such a "targeted" moratorium, covering the 90 percent of counties where the spread of COVID-19 was rated as "high" or "substantial" by the CDC.
"The bulk of the constitutional scholarship says that it's not likely to pass constitutional muster," Biden admitted at a press conference that day. But, he said, "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."
It was an exercise in lawlessness, albeit a temporary one. On August 26, the Supreme Court ruled 6–3 that the CDC did not have the power to issue an eviction moratorium. Still, the persistence of these measures captures a new way of thinking among some on the left: the rise of the idea that people should never be evicted for nonpayment of rent. When someone stops paying, this thinking goes, it's a problem for public policy—i.e., regulations and subsidies—to address.
For a year, the CDC was able to lay claim to a vast amount of power—arguably enough power to impose any restriction on private parties it deemed "necessary" to prevent the spread of a communicable disease. And although the CDC order was eventually struck down, moratoriums at the state and local level will persist long after the public health threat that initially justified them has ended. Seattle's moratorium on evictions for nonpayment won't expire until March 2022 at the earliest.
Meanwhile, these moves have deprived rental housing providers of the ultimate means to safeguard their property rights and remedy contract violations. It's also made their business a lot riskier.
In response, some landlords say they're raising the credit scores they'll require of new renters and increasing their security deposits. With home prices at record highs, there's also a powerful incentive to get out of the rental market altogether by selling off properties to owner-occupiers. Neither of those outcomes is great for tenants, many of whom rent precisely because they can't afford to buy right now.
"In terms of renting it out in the future, I'm way more skeptical," says Rivera. "I tried to be a good landlord. I got [my tenant] a job. I tried to be patient. But if evictions are that difficult to do, if it's going to take a year, if I'm not going to have a sense of who's in my house, it really does worry me."
Blanket eviction moratoriums were a novel feature of the COVID crisis. They look more and more likely to be a regular feature of our future—even when there isn't a crisis.