Fighting the CDC’s national eviction ban to restore separation of powers

In early September, the CDC adopted an order that prohibits certain evictions for non-payment of rent. The agency says that the eviction ban is necessary to curb the spread of COVID-19, but tenants can invoke the ban whether they suffer from COVID-related hardships or not. Tenants must simply provide their landlords a CDC-approved declaration saying that they make less than $99,000 annually, are unable to pay rent because of a loss of income, have tried to obtain government assistance, will try to make partial rent payments, and will be homeless or will have to move in with others if they are evicted. Once they submit a declaration, a landlord cannot evict them.

In its haste to enact and enforce this national eviction ban, the CDC overstepped its lawful authority in several ways.

1. Congress has authorized the CDC to take certain steps to stop the spread of communicable diseases across state lines, but that doesn’t cover a sweeping action like a nationwide moratorium on evictions.
2. The CDC is essentially making law, which the Constitution reserves to Congress.
3. The CDC ignored official rule-making procedures, which require giving notice to affected parties and giving them and the public a chance to comment before the CDC issues official regulations.

The result of all this unaccountable lawmaking? The CDC has targeted and harmed the very people who provide the housing so many Americans depend on—the very people who now allow Americans to practice social distancing during the pandemic. It’s landlords who are actually solving the problem that the government is concerned about. Yet the CDC is now punishing them for saving their money, investing in properties, maintaining those properties, and providing places for people to live.

Owning and running rental housing is a business. As in the case of any business (or job), those who provide the service expect to be paid—and deserve to be paid. Yet the CDC, like many state and local governments, has decided to foist a large part of the burden of the pandemic on a single group. This is both foolish and unjust.

Eric and Lila Wohlwend own and manage rental properties in Canton, Ohio, through their two businesses, Skyworks Ltd. and Clear Sky Realty. One of their newer tenants, who signed a lease over the summer, stopped paying rent in October. The Wohlwends tried to meet with them and work out a payment plan, but the tenant was not responsive. The Wolhwends filed a notice to vacate but were met with a signed CDC declaration saying that the tenant couldn’t pay, with no explanation as to why.

Although the CDC’s eviction ban is set to expire in December, the Wohlwends want to ensure that the federal government cannot ever repeat its unlawful power grab. Represented free of charge by PLF and the 1851 Center for Constitutional Law, Skyworks Ltd., other landlords and management companies, and the NAHB, are seeking to restore the rights of landlords and the rule of law so that the federal government cannot exercise the same unlawful expansion of powers to enact similar nationwide measures.