The CDC’s Legally Questionable Extension of the Rent Moratorium


Toddlers are funny little creatures – simultaneously overly dependent and highly independent. With the newfound discovery of willpower, the tiny humans constantly experiment in testing boundaries.

My toddler is characteristically sweet and obedient. But there is one rule she delights in breaking: dumping out the dog’s water bowl. Testing limits, she coyly ignores her mother’s chiding by splashing toys and dipping her feet in the water until the kitchen floor is soaked and neither of us are pleased.

In some ways, the behavior of the ever-expanding “administrative state” feels like my toddler’s instinctual limit-testing. Through persistently pushing boundaries, the various agencies of the executive branch seek to see what they can get away with in order to expand the scope of their authority.

The administrative state is naturally incentivized to increase their purview: with more responsibility comes more funding and more power. And because the legislative branch often grants immense discretion to bureaucratic agencies, the delegation of powers often becomes arbitrary, thus eroding the separation of powers outlined in the U.S. Constitution.

No greater recent example of this exists than when the Centers for Disease Control and Prevention, under the direction of President Biden, attempted to extend the rent moratorium. Nowhere in  U.S. Code: Title 42 – which outlines the responsibilities of the CDC approved by the legislative branch — is the health agency granted such broad authority.

Unsurprisingly, three weeks after the CDC’s order to extend the rent morator­ium, the Supreme Court struck down the extension.

In the case, the Government argued that under 42 U.S. Code § 361(a) it is “authorized to make and enforce such regulations as in his judgement are necessary to prevent the introduction, transmission, or spread of communicable diseases…” and “such regulations” could extend to rent moratoriums. However, as the Supreme Court’s decision noted, the rest of the provision only outlines the regulations to include activities such as inspection, fumigation, sanitation, etc.

In the majority opinion, the Supreme Court excoriated the Government’s “unprecedented” interpretation of the provision, calling it a “wafer-thin reed on which to rest such sweeping power” and that “since that provision’s enactment in 1944, no regulation premised on it has even begun to approach the size or scope of the eviction moratorium”.

The majority opinion did, however, mention that any decision to extend the rent moratorium would be up to Congress.

The first rent moratorium was passed in Congress last year. But to extend the moratorium, Congress needed to pass new legislation by the end of July. As landlords suffered and continued to petition the government for redress, not even the Democrat-led House of Representatives was willing to extend eviction moratorium.

Due to the eviction moratorium, landlords have been struggling to pay the bills. According to the Brookings Institute, mom-and-pop landlords provide half of the housing stock for the country and 30 percent have an annual household income of less than $90,000. Many of these landlords have been forced to liquidate their property, which is then bought up by private-equity firms for pennies on the dollar. The effect on the market is akin to the millions of small businesses that closed during the pandemic: devastating to the middle-class and overall economy.

Despite these facts, President Biden “asked the CDC to go back and consider other options which may be available to them.” He also acknowledged that further action by him or the CDC was unlikely to pass Constitutional muster, but “at a minimum, by the time it gets litigated, it will probably give some additional time”.

In other words, President Biden and the CDC knew full-well that the extension of the moratorium would not hold up in court. But the administrative state thought to flex anyway, knowing that the courts move slow.

Unlike my daughter, whose innocent boundary testing harms no one (and undoubtedly serves as a great tool to teach her rule-of-law), such reckless governance jeopardizes the separation of powers and harms the American people.

McKenzie Richards is a Health Care Program Associate and Development Associate at the Pacific Research Institute

Nothing contained in this blog is to be construed as necessarily reflecting the views of the Pacific Research Institute or as an attempt to thwart or aid the passage of any legislation.

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