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Eviction Moratorium Cases Reveal Courts' Misunderstanding of Public Health

By Mahathi Vemireddy and Faith Khalik

Originally published July 29, 2021 on Bill of Health

Amid the COVID-19 Delta variant surge, the federal eviction moratorium — a key public health protection — will soon expire, and faces tough prospects for extension due to a series of legal battles.

These legal challenges highlight a narrow — and dangerous — conception of public health held by some courts, one which fails to recognize how social conditions such as housing can compound the impact of a virus. To protect our nation’s health, this misunderstanding of public health must be remedied.

In April 2020, recognizing that preventing evictions is key to subduing the pandemic, Congress enacted a 120-day eviction moratorium that applied to rental properties receiving federal funding assistance. After that expired, the U.S. Centers for Disease Control and Prevention (CDC) issued its own moratorium in September. Congress later granted a 30-day extension of the CDC Order in the Consolidated Appropriations Act in December, and CDC has further extended the order three times. It’s currently set to expire on July 31st.

Since last September, the CDC’s eviction moratorium has protected millions of renters facing eviction during the COVID-19 pandemic. It has also helped stem the spread of COVID-19: research shows that eviction moratoria are associated with lower rates of COVID-19 illness and death.

But the federal moratorium has been repeatedly challenged in federal courts, with plaintiffs suggesting such action extends beyond the CDC’s authority.

The Public Health Services Act grants the CDC Secretary the authority to make and enforce regulations necessary to prevent the spread of communicable disease between states. CDC and its supporters maintain the law gives appropriately broad powers, including permission to act when mass evictions could lead to further spread of a highly contagious disease.

The Act also notes that, in order to enforce those regulations, the Secretary may “provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.”

Several federal courts have upheld the moratorium, though other lower federal court judges have ruled against CDC, interpreting that sentence within the statute as restricting what actions CDC may take. They determined the actions listed, such as inspection and fumigation, are not suggested actions, but rather a complete list of authorized actions. Perhaps even more troubling, several judges suggested that the Public Health Services Act would be unconstitutional if CDC had the power it claimed. In their view, Congress could not grant CDC the power to take appropriate measures other than those that were specifically listed in the statute to stop a pandemic.

Last month, the moratorium made it all the way to the Supreme Court last month. Although the Court decided to let it stand, Justice Kavanaugh said he cast the deciding vote only due to the moratorium’s imminent expiration. The connection between housing insecurity and the nation’s health was not even mentioned.

The courts’ failure to see the connection between housing security and public health, and thus the CDC’s traditional public health powers, bodes poorly for our nation’s ability to withstand the next pandemic. It also highlights the urgent need for judges to better understand the relationship between housing and health.

Having a roof over one’s head is particularly important during a pandemic. Evictions can result in homelessness and overcrowded households during a time when social distancing is an essential requirement for reducing the spread of disease; COVID-19 is frequently transmitted between household members.

People without housing or living in transitional housing are in more frequent contact with strangers, may not be able to maintain safe social distances, and may face more difficulty practicing frequent handwashing. These conditions increase the likelihood of exposure to COVID-19 and make compliance with quarantine and social distancing measures far more difficult.

Unfortunately, most judges are not exposed to public health science in law school or in judicial education programs. We must fill this gap in judicial education, so judges can better understand how housing and other social factors influence health, and how to interpret related data for more effective decision making.

As the federal eviction moratorium comes to an end, Congress should revisit the Public Health Services Act to provide CDC with explicit authority to take actions to address the social determinants of health when doing so is critical to slowing a public health emergency. Additionally, it is equally as important that judges expand their conception of public health and recognize the health consequences of eviction, and how legal protections for tenants can lead to better health all around.

Safe, stable housing is key to our health. Once judges understand that, and reimagine their approach to health and the law, we will all be better off.

Mahathi Vemireddy is a third-year law student at Northeastern University School of Law.

Faith Khalik is the Legal Fellow at Public Health Law Watch, a George Consortium initiative housed at Northeastern University School of Law.


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