The Supreme Court recently ruled — for the second time in a matter of weeks — that the Centers for Disease Control (CDC) had exceeded its legal authority in issuing a national eviction moratorium. In a sweeping rebuke of the current administration, the court held that “it strains credulity to believe the CDC has been granted the sweeping authority that it asserts.”
On June 29, the court had ruled (in Alabama Association of Realtors, et al. v. Department of Health and Human Services) against the original CDC eviction moratorium, but they allowed the agency to keep the rule in place since it was set to expire on July 31. President Biden responded to this ruling by asking the CDC to renew its moratorium, even while acknowledging that it was illegal. The CDC re-issued the moratorium on Aug 3, 2021. This latest decision by the Supreme Court came at lightning speed, by federal court standards, issued even before the case had been fully litigated through the Court of Appeals.
Colorado housing providers know that rent payments have remained steady for most of this year. In fact, rent payments have only been about one-half of a percentage point off of normal throughout the entire period of virus-related closures and the resulting economic upheaval, with 97 percent of Colorado rent payments made in July 2021. In turn, evictions have been historically low. Only 1,989 eviction actions, or about 52% of normal, were filed in July throughout the entire state of Colorado with a population of 5.8 million people. There is neither a crisis with rent payments nor a crisis with pent-up impending evictions.
We have seen that the programs available to citizens in need are working. The Colorado Apartment Association (CAA) and its members continue to support Colorado residents who are struggling with rent payments by offering payment plans and other solutions to keep residents in their homes. The state received $247 million in Federal funding for rental and utility assistance, of which rental housing providers and residents can both apply for past due, current, and future rent costs. The Department of Labor’s ERAP program and the rental assistance programs from the Colorado Department of Labor (DOLA) are both working. We also have partnered with the Resident Relief Foundation (RRF) to provide grants for residents who have had a COVID-19 income loss.
To understand the hubris of the CDC and the Biden Administration in ignoring the original ruling of the court and the constitutional crises that was created by the CDC’s decision to elevate the issue to a titanic game of chicken with the court requires a little background on how the Supreme Court typically functions. The Supreme Court tries to stay in its lane. Each of the court’s words are consumed by legal scholars and litigants across the country and used as a source to predict the outcome of future cases. Consequently, the court consistently decides issues as narrowly as it can, which is a constant source of aggravation to those looking for greater levels of legal change. The court endeavors to make new decisions as consistent as possible with past decisions and does all it can to avoid talking in broad and sweeping terms.
This is particularly true when the court analyzes administrative agency actions. The growth in administrative agencies like the CDC began with Depression-era legislation. Initially, there was great legal hostility to the powers of these agencies as many saw the exercise of administrative rulemaking as unconstitutional. Over the years, federal agencies have gradually — under both Republican and Democratic administrations — issued more and more regulatory actions outside of the bounds of legislation.
The CDC, like many agencies and executive branches across the country, was betting that the expense and slowness of litigation would allow it to enact sweeping and unlawful policies. Their bet that legal remedies would be too slow to have any practical effect backfired on them.
Crisis mongering and exaggerated claims of economic instability and housing displacement continue to be taken at face value and are simply not true.
Drew Hamrick is the general counsel and senior VP of government affairs for the Colorado Apartment Association.