The CDC’s order against evictions is toothless, has no Constitutional justification, is over-reaching by the Executive and the CDC, does not stop the filing of evictions, and has bureaucratic hurdles for any tenant who tries to get relief under it. (For those of you who don’t care about the legality of it all, skip to: “The order does not stop the filing of evictions."
The CDC order against evictions cannot be enforced by the CDC nor the entire Executive branch of the U.S. government. Because the Federal Government has no authority to direct the county sheriffs in any matter, nor to direct the state legislatures to pass comparable laws. Specifically, Constitutional Law prohibits the US Federal Government from “commandeering” the state executive by compelling state officials to act on the Federal Government’s behalf, and the Federal Government cannot “commandeer” the state legislature by compelling states to pass supporting legislation mirroring the Federal mandates. In short, the CDC’s “order” cannot be enforced by the Federal Government (outside of D.C.) and the Federal Government cannot legally require states to enforce it.
References to the Commerce Clause of the U.S. Constitution riddle the CDC “Order.” The Commerce Clause has been used to support non-economic Federal law to trump state law regarding morals, welfare, civil rights, and ultimately any human activity which has any affect on activities in more than one state. However, the Commerce Clause does NOT grant a federal police power, which would be necessary to enforce this Executive Order. This is because the Commerce Clause, despite being repeatedly referenced by innuendo in the “order,” does not grant the Executive (the CDC falls under the Executive) any power. Same goes for the “Necessary and proper clause.” Even if this “order” were Constitutional, it is overreaching beyond all previous orders.
The Executive does not have the authority to restrict citizens in this manner, but it does have the ability to lobby Congress to award money to affected tenants. The Executive’s role is clear in history and in the Constitution, and such an order has no foundation. However, there is a small section of the Public Health Service Act which provides the CDC director authority to take "reasonably necessary" steps such as "inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection." Construing the code to imply some power beyond these local examples is unfounded. Based on the specified examples, the CDC's eviction order is unsupportable.
The order does not stop the filing of evictions but it creates a temporary defense that the tenant can use when they get to court. That’s right, landlords can still file and prosecute evictions, but tenants have an “affirmative defense.” That means the tenants admit they did not pay rent but they say they can show a reason why they didn’t pay rent. If the judge agrees the reason is valid the set out will be delayed until when the moratorium ends just after Christmas. Set outs and payments are only delayed until January, and at that time the tenants will owe all the back rent that accrued through the time they are set out by the local sheriff. And this protection is not automatic.
Renters must meet certain criteria to claim this affirmative defense: They must prove they
— have an income of $198,000 or less for couples.
— have sought government assistance to make their rental payments.
And in order to get the postponement, renters must also, in court,
— legally declare they are unable to pay rent because of COVID-19 hardships.
— legally Affirm they are likely to become homeless if they are evicted.
The CDC order seems to be something a clever high schooler wrote, before they took economics class. Robbing Peter to pay Paul should not be government policy and fortunately the CDC’s order does not actually take money out of landlords’ pockets and give it to renters: If it did, very soon there would not be many rental houses available.