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AND DOES THE AGENCY HAVE THE AUTHORITY?
by Sharon Rondeau
(Sep. 3, 2020) — On September 1, 2020, the Centers for Disease Control and Prevention (CDC) issued an “Order” commanding all landlords to exercise forbearance through the end of the year in evicting non-paying tenants.
The order was described as “extraordinary” and a “surprise” by both tenant advocates and property owners, although many in the former category criticized the absence of actual financial relief to those affected.
On August 8, President Trump, a former landlord, signed an executive order stating, in part:
Section 1. Purpose. The 2019 novel coronavirus (COVID-19) pandemic, which originated in the People’s Republic of China, continues to pose a significant threat to the health of Americans throughout the United States. As we have since January 2020, with the proactive decision to limit travel from China and the passage of three massive economic relief packages, my Administration will take whatever steps are necessary to reduce the spread of COVID-19 and maintain economic prosperity.
The Centers for Disease Control and Prevention (CDC) of the Department of Health and Human Services have concluded that “growing and disproportionate unemployment rates for some racial and ethnic minority groups during the COVID-19 pandemic may lead to greater risk of eviction and homelessness or sharing of housing.”
This trend is concerning for many reasons, including that homeless shelters have proven to be particularly susceptible to outbreaks of COVID-19. CDC has observed that “[h]omelessness poses multiple challenges that can exacerbate and amplify the spread of COVID-19. Homeless shelters are often crowded, making social distancing difficult. Many persons experiencing homelessness are older or have underlying medical conditions, placing them at higher risk for severe COVID-19–associated illness.” Increased shared housing is also potentially problematic to the extent it results in increased in-person interactions between older, higher-risk individuals and their younger relatives or friends.
My Administration has taken bold steps to help renters and homeowners have safe and secure places to call home during the COVID-19 crisis. Prior to passage of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) (Public Law 116-136), the Secretary of Housing and Urban Development implemented a foreclosure and eviction moratorium for all single-family mortgages insured by the Federal Housing Administration. Furthermore, prior to passage of the CARES Act, the Federal Housing Finance Agency (FHFA) announced that it had instructed the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation (the Enterprises) to suspend foreclosures for at least 60 days. FHFA has since announced that the Enterprises will extend the foreclosure suspension until at least August 31, 2020.
The CARES Act imposed a temporary moratorium on evictions of certain renters subject to certain conditions. That moratorium has now expired, and there is a significant risk that this will set off an abnormally large wave of evictions. With the failure of the Congress to act, my Administration must do all that it can to help vulnerable populations stay in their homes in the midst of this pandemic. Those who are dislocated from their homes may be unable to shelter in place and may have more difficulty maintaining a routine of social distancing. They will have to find alternative living arrangements, which may include a homeless shelter or a crowded family home and may also require traveling to other States…
Section 2 of the order states, in its entirety, “It is the policy of the United States to minimize, to the greatest extent possible, residential evictions and foreclosures during the ongoing COVID-19 national emergency.”
Section 3 outlines steps Trump directed HHS Secretary Alex Azar to take by assisting those at risk as well as “landlords”:
(a) The Secretary of Health and Human Services and the Director of CDC shall consider whether any measures temporarily halting residential evictions of any tenants for failure to pay rent are reasonably necessary to prevent the further spread of COVID-19 from one State or possession into any other State or possession.
(b) The Secretary of the Treasury and the Secretary of Housing and Urban Development shall identify any and all available Federal funds to provide temporary financial assistance to renters and homeowners who, as a result of the financial hardships caused by COVID-19, are struggling to meet their monthly rental or mortgage obligations.
(c) The Secretary of Housing and Urban Development shall take action, as appropriate and consistent with applicable law, to promote the ability of renters and homeowners to avoid eviction or foreclosure resulting from financial hardships caused by COVID-19. Such action may include encouraging and providing assistance to public housing authorities, affordable housing owners, landlords, and recipients of Federal grant funds in minimizing evictions and foreclosures…
The CDC’s order, on the other hand, mandates a moratorium on all evictions. From page 5:
Under this Order, a landlord, owner of a residential property, or other person3 with a legal right to pursue eviction or possessory action, shall not evict any covered person from any residential property in any jurisdiction to which this Order applies during the effective period of the Order. This Order does not apply in any State, local, territorial, or tribal area with a moratorium on residential evictions that provides the same or greater level of public-health protection than the requirements listed in this Order. Nor does this order apply to American Samoa, which has reported no cases of COVID-19, until such time as cases are reported.
Major media reported the development largely on Wednesday without referencing the mandatory comment period following the publication of any agency regulation in the Federal Register. According to the CDC’s early release, the directive is expected to be published in the Federal Register on Friday, September 4.
The National Archives, which produces the publication every business day, states:
Federal agencies are required to publish notices of proposed rulemaking in the Federal Register to enable citizens to participate in the decision making process of the Government. This notice and comment procedure is simple.
- A proposed rule published in the Federal Register notifies the public of a pending regulation.
- Any person or organization may comment on it directly, either in writing, or orally at a hearing. Many agencies also accept comments online or via e-mail. The comment period varies, but it usually is 30, 60, or 90 days. In each Federal Register document, the issuing agency gives detailed instructions on how, when, and where a viewpoint may be expressed. In addition, agencies must list the name and telephone number of a person to contact for further information.
- When agencies publish final regulations in the Federal Register, they must address the significant issues raised in comments and discuss any changes made in response to them. Agencies also may use the notice and comment process to stay in contact with constituents and to solicit their views on various policy and program issues.
The CDC is a division of the Department of Health and Human Services (HHS). Page 1 of the order references “Section 361 of the Public Health Service Act” as its authority, otherwise indicated on the final page as “42 U.S.C. 264.” The section begins:
(a) Promulgation and enforcement by Surgeon General
The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General 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.
A second authority for the order cites 42 CFR 70.2, which reads:
Whenever the Director of the Centers for Disease Control and Prevention determines that the measures taken by health authorities of any State or possession (including political subdivisions thereof) are insufficient to prevent the spread of any of the communicable diseases from such State or possession to any other State or possession, he/she may take such measures to prevent such spread of the diseases as he/she deems reasonably necessary, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.
The draft of the order is signed by “Nina B. Witkofsky, Acting Chief of Staff, Centers for Disease Control and Prevention.”
The “declaration” for tenants facing difficulty in paying their rent is to be signed, under penalty of perjury, and provided to the landlord. “This declaration is for tenants, lessees, or residents of residential properties who are covered by the CDC’s order temporarily halting residential evictions (not including foreclosures on home mortgages) to prevent the further spread of COVID-19,” it begins.
The declaration, the order states on page 34, is made “pursuant to 28 U.S.C. 1746,” which is titled, “Unsworn declarations under penalty of perjury.”
The order does not contemplate whether or not the individual or persons at risk of eviction are carriers or survivors of the novel coronavirus, also known as “COVID-19.”
The criteria to qualify for the rent forbearance are income, situational, and hypothetical. The wording reads:
- I have used best efforts to obtain all available government assistance for rent or housing;37
- I either expect to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return), was not required to report any income in 2019 to the U.S. Internal Revenue Service, or received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
- I am unable to pay my full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary38 out-of-pocket medical expenses;
- I am using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other nondiscretionary expenses;
- If evicted I would likely become homeless, need to move into a homeless shelter, or need to move into a new residence shared by other people who live in close quarters because I have no other available housing options.
- I understand that I must still pay rent or make a housing payment, and comply with other obligations that I may have under my tenancy, lease agreement, or similar contract. I further understand that fees, penalties, or interest for not paying rent or making a housing payment on time as required by my tenancy, lease agreement, or similar contract may still be charged or collected.
- I further understand that at the end of this temporary halt on evictions on December 31, 2020, my housing provider may require payment in full for all payments not made prior to and during the temporary halt and failure to pay may make me subject to eviction pursuant to State and local laws
On Wednesday, CNBC quoted Emily Benfer, “a law professor at Wake Forest University and co-creator of the COVID-19 Housing Policy Scorecard with the Eviction Lab at Princeton University,” as advocating “rental assistance” in addition to the “extraordinary” agency order without disclosing, or perhaps without the knowledge, that Benfer’s work was used as a source for the order.
Footnote 17 on page 20 reads:
The footnote refers to Benfer’s article as published by The Aspen Institute. The subsequent footnote sources “The Eviction Lab,” with which Benfer is also associated, according to CNBC.
Founded in 1949, The Aspen Institute’s mission is to answer the question, “What is a good society?” (0:52 in linked video)
Benfer is one of ten co-authors of the August 7 article, which begins:
The United States may be facing the most severe housing crisis in its history. According to the latest analysis of weekly US Census data, as federal, state, and local protections and resources expire and in the absence of robust and swift intervention, an estimated 30–40 million people in America could be at risk of eviction in the next several months. Many property owners, who lack the credit or financial ability to cover rental payment arrears, will struggle to pay their mortgages and property taxes and maintain properties. The COVID-19 housing crisis has sharply increased the risk of foreclosure and bankruptcy, especially among small property owners; long-term harm to renter families and individuals; disruption of the affordable housing market; and destabilization of communities across the United States.
Throughout the COVID-19 pandemic, researchers, academics, and advocates have conducted a continuous analysis of the effect of the public health crisis and economic depression on renters and the housing market. Multiple studies have quantified the effect of COVID-19-related job loss and economic hardship on renters’ ability to pay rent during the pandemic. While methodologies differ, these analyses converge on a dire prediction: If conditions do not change, 29-43% of renter households could be at risk of eviction by the end of the year.
This article aggregates the existing research related to the COVID-19 housing crisis, including estimated potential upcoming eviction filings, unemployment data, and housing insecurity predictions. Additionally, based on this research and new weekly analysis of real-time US Census Bureau Household Pulse data, this article frames the growing potential for widespread displacement and homelessness across the United States.
On August 6, the CDC issued “FAQs” on the combined issue of homelessness and COVID-19. In response to the question, “Are people experiencing homelessness at risk of COVID-19?” the CDC wrote, “Because many people who are homeless are older adults or have underlying medical conditions they may also be at increased risk for severe illness than the general population. Health departments and healthcare facilities should be aware that people who are homeless are a particularly vulnerable group. If possible, identifying non-congregate settings where those at increased risk can stay may help protect them from COVID-19.”
To the question, “Where should a person who is experiencing homelessness stay if they are suspected to have COVID-19 or if they have tested positive for COVID-19?” the CDC responded, “Those with suspected or confirmed COVID-19 should stay in a place where they can best be isolated from other people to prevent spreading the infection. Local health departments, housing authorities, homeless service systems and healthcare facilities should plan to identify locations to isolate those with known or suspected COVID-19 until they meet the criteria to end isolation. Isolation housing could be units designated by local authorities or shelters determined to have capacity to sufficiently isolate these people. If no other options are available, homeless service providers should plan for how they can help people isolate themselves while efforts are underway to provide additional support. Please see the Interim Guidance for Homeless Service Providers and Interim Guidance for People Experiencing Unsheltered Homelessness for more information.”
“Should homeless encampments be cleared?” is the last question on the page and replied to with, “Connecting people to stable housing should continue to be a priority. However, if individual housing options are not available, allow people who are living in encampments to remain where they are. Encourage people living in encampments to increase space between people and provide hygiene resources in accordance with the Interim Guidance for People Experiencing Unsheltered Homelessness.”
Footnote 31 on page 24 of the order references a February 2017 research article titled, “The threat of home eviction and its effects on health through the equity lens: A systematic review.” An “abstract” of the essay begins, “The aims of this review are to gather and systematize the currently available evidence on the effect of the threat of eviction on health and its eventual spillover effects, to assess the quality of the selected studies, and to describe how these findings vary with respect to dimensions of social inequity.”
In response to a tweet on Wednesday from Rep. Thomas Massie (R-KY4) opining that “the CDC order is an affront to the rule of law, and an emasculation of every legislator in this country – state and federal,” Sen. Rand Paul (R), also from Kentucky, tweeted Thursday morning:
In contrast to other reportage, Sylvan Lane of The Hill wrote Thursday:
The Trump administration’s new eviction ban faces a slew of legal and political challenges that could undercut an ambitious and unorthodox attempt to save tens of millions Americans from homelessness.
The Centers for Disease Control and Prevention (CDC) on Tuesday issued an order banning landlords from evicting tenants that can no longer afford to pay rent due to a pandemic-related expense or hardship through the end of 2020. That order, along with previously issued federal protections, could ensure all of the nation’s 40 million rental households keep their residences during the pandemic.
But the eviction ban is a groundbreaking test of the CDC’s power that experts say will undoubtedly prompt several legal challenges. And advocates for both tenants and the real estate industry fear that the expiration of the protections at the end of the year could create a dangerous housing crisis at the start of 2021.
On Tuesday, Lane quoted a White House spokesman, Brian Morgenstern, as having stated of the order, “President Trump is committed to helping hardworking Americans stay in their homes and combating the spread of the coronavirus. Today’s announcement from his administration means that people are struggling to pay rent and risk further spreading of exposure to the disease, due to economic hardship.”
In the same column, Lane reported that the previously-declared HUD moratorium on evictions and foreclosures of those with federally-backed mortgages will extend through the end of the year.
The Charlotte Observer also reported, “Attorneys who work with evictions cases say the order is likely to be challenged legally, including over whether the CDC has the authority to issue such an order.”
In response to reports earlier this week that the CDC released information
The Epoch Times reported Wednesday that “94 Percent of COVID-19 Deaths in US Have Contributing Health Conditions,” citing “updated information” from the CDC. Related reports state, “CDC Finds Only 6% Of Coronavirus Deaths Are Solely From COVID-19” and “Did COVID-19 cause only 6% of coronavirus deaths? Viral posts misrepresent CDC report.”
The subject trended in first place on Twitter Thursday evening with reports from the AP and Politifact stating that the CDC “did not adjust data” regarding deaths attributed to the coronavirus.
Early Thursday afternoon, The Post & Email contacted Witkofsky at the email address provided on the order as well as the media representative at HHS with questions. Prior to press time we received the promised acknowledgement from HHS but no other communication from either source.
One of our questions was, “Did HHS direct the CDC to issue the declaration?” while another asks, “If evictions pose a risk of transmission of the coronavirus, why did the CDC wait six months to issue the declaration?”