The national eviction moratorium keeping countless Coloradans housed during the pandemic is now in question after a federal judge ruled Wednesday that the Centers for Disease Control and Prevention overstepped its authority.
A federal judge ruled in the case of the Alabama Association of Realtors v. the U.S. Department of Health and Human Services that the CDC secretary is empowered to make regulations to prevent the spread of communicable diseases. But since Congress wasn’t explicit in supporting the eviction moratorium beyond Jan. 31 the ban is now invalid and should be vacated.
“The question for the Court is a narrow one: Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not,” U.S. District Court Judge Dabney L. Friedrich, who sits on the United States District Court for the District of Columbia, Friedrich wrote in his ruling.
The national moratorium was an important tool keeping Coloradans housed during the pandemic. The state’s own moratorium mostly ended on Dec. 31, leaving just the CDC ban, which was restricted to people who had lost their job or faced healthcare costs related to COVID-19. The CDC ban still allowed other evictions to continue.
The CDC moratorium was extended multiple times last year and now ends on June 30. The Biden administration is challenging the ruling and seeking an emergency ruling to prevent the ban from being lifted.
The U.S. Department of Justice disagreed and within hours of the ruling said it has filed notice of appeal and will seek an emergency stay of the order.
“In the department’s view, that decision conflicts with the text of the statute, Congress’s ratification of the moratorium, and the rulings of other courts,” Brian M. Boynton, Acting Assistant Attorney General for the Justice Department’s Civil Division, said in a statement.
The latest ruling means the issue could play out in court for months. If the Biden administration’s request is granted and the ban is kept intact, renters could have more time to recover from the pandemic, find work or get rental assistance. However, it wasn’t the first legal ruling to decry the eviction moratorium. It was just the latest.
“This newest federal case is now the fifth federal court to declare the CDC moratorium invalid,” said Drew Hamrick, general counsel for the Colorado Apartment Association.
Hamrick pointed to the Tiger Lily LLC v. U.S. Department of Housing and Urban Development case in Texas. The court said the ban was invalid because the CDC didn’t have that much blanket authority.
The state apartment association, which represents property owners and landlords, has opposed eviction moratoriums because rental aid is available and some landlords claim they run into financial trouble with their own bills when they are unable to collect rent. Eviction filings for 2020 and 2021 in Colorado are less than half what they were in 2019, according to CAA data.
“Now is the time to begin letting the housing markets return to normal, not doubling down on bad policies,” he said.
As of May 3, approximately 30,372 requests for rent or mortgage help had been approved for a total of $74.1 million since last summer, according to the state’s Department of Local Affairs, which oversees the emergency housing relief program.
A new program that opened to renters in February has paid $1.6 million to 547 applicants. But that’s just a small portion of the 6,537 applications received so far that seek a total of $48.5 million in the new Emergency Rental Assistance Program, which is funded by $247 million in federal rental relief.
Another 14,000 applicants who applied under older rent or mortgage assistance programs also have not been approved. Those who applied on or after Feb. must resubmit their request to ERAP.
The influx of applicants after the state’s eviction moratorium ended created a massive backlog for rental assistance in January. DOLA hired contractor HORNE in February to sort through the applications but many have been waiting for months.
But the application process has been speeding up, said Brett McPherson, a DOLA spokesman.
“HORNE has committed to a two-week review of all ERAP applications by April 30,” he said. “They will be caught up on initial reviews for (older programs) by May 15.”
The situation seems to be improving among struggling renters who seek free legal advice from the COVID-19 Eviction Defense Project in Denver. But, said cofounder Zach Neumann, it has taken the combination of financial assistance, legal aid and the eviction moratorium to make a dent in the need tenants have had during the pandemic fallout.
“Because of the stimulus, because of the rental assistance, and because the moratorium has created time and space for people to avail themselves of these benefits, we’re starting very slowly and very gradually to see the eviction risk numbers get better,” Neumann said. “They’re still pretty bad. But the picture is slowly improving, and it’s a testament to the fact that these different supportive policies are beginning to work.”
This story was updated at 6 p.m. with an update on the emergency housing relief programs from the Department of Local Affairs.