Legal experts differ on how the Texas decision alters the landscape.
“The CDC order has been struck,” said Robert Henneke, the general counsel for the Texas Public Policy Foundation and lead attorney representing the landlords in the Texas case. “It doesn’t exist anymore. It’s unconstitutional.”
“The CDC moratorium is still active,” countered Emily Benfer, a visiting professor of law at Wake Forest University. “Tenants can still exercise their rights under it across the country.”
The federal government has yet to signal whether it plans to appeal the Texas decision. “In the meantime, that means uncertainty for renters,” said Diane Yentel, president and chief executive of the National Low Income Housing Coalition (NLIHC).
The CDC eviction moratorium — signed by President Donald Trump in September and extended by President Biden until March 31 — has had a rocky tenure.
As the coronavirus forced large swaths of the economy to grind to a halt in 2020 — with businesses shuttering, work hours slashed, and millions of Americans looking to local and federal safety net programs for survival — experts warned that the nation’s residential real estate sector would face a reckoning.
In August, the NLIHC, the Aspen Institute Financial Security Program, and the COVID-19 Eviction Defense Project released a report warning that as many as 40 million American renters could face eviction due to the virus.
State and local governments stepped in with their own eviction moratoria in the pandemic’s early days. But in many states, such as Maryland and Virginia, those protections ran out by the end of summer. Combined with the expiration of the first round of Cares Act funding, experts warned that a wave of evictions could hit the country without unified policy action from the Trump administration.
The federal government acted in early September with the CDC moratorium. Framed in terms of public health, the Trump administration announced a freeze on all nonpayment of rent cases for tenants who signed a declaration. The order, however, did not wipe away a tenant’s debt or supplement the landlord for delayed rent payment. It simply proposed to keep people in their homes while the virus’s march continued.
“I want to make it unmistakably clear that I’m protecting people from evictions,” Trump said in a statement when the CDC order was announced.
But the moratorium’s own wording left room for legal interpretation, and state supreme courts issued their own guidance to judges about how to execute the order — guidance that often varied from state to state. Housing advocates complained that evictions continued because of loopholes in the order. Meanwhile, landlord advocates complained that the order also didn’t include rental relief. Despite guidance issued by the CDC in October that attempted to clarify the moratorium, confusion continued, and a handful of cases were filed challenging the provision on behalf of landlords.
“They have continued to pay their property taxes and mortgages and the costs of their properties,” said Henneke, the attorney in the Texas case. “They’re not the villains in this story. They have been the ones struggling to get by.”
In the Texas case, Barker did not issue a nationwide injunction with his order, a move that would have made it clear that it applied beyond the Eastern District of Texas. He did, however, suggest in his decision that he would issue such an injunction if the federal government does no abide by his ruling.
“If they do get an injunction, that would be disastrous,” Yentel said. “That would mean overnight the protections from the order would not be there.”
Regardless of how the Biden administration charts its next move, some owners are likely to take the ruling as a positive signal, at least for the moment.
“The protections still stand now, but I do think there will be landlords now taking cases to local housing courts and filing evictions by citing this case,” Yentel said.