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

In September, 2020 the CDC adopted an order that prohibited certain evictions for non-payment of rent. The agency said that the eviction ban was necessary to curb the spread of COVID-19, but tenants could invoke the ban whether they suffered from COVID-related hardships or not. Tenants simply had to provide their landlords a CDC-approved declaration saying that they made less than $99,000 annually, were unable to pay rent because of a loss of income, had tried to obtain government assistance, would try to make partial rent payments, and would be homeless or would have to move in with others if they were evicted. Once they submit a declaration, a landlord could not evict them.

The CDC overstepped its lawful authority in several ways.

1. Congress authorized the CDC to take certain steps to stop the spread of communicable diseases across state lines, but that didn’t cover a sweeping action like a nationwide moratorium on evictions.
2. The CDC was essentially making law, which the Constitution reserves to Congress.
3. The CDC ignored official rule-making procedures, which required 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 targeted and harmed the very people who provide the housing so many Americans depend on—the very people who allowed Americans to practice social distancing during the pandemic. It’s landlords who were actually solving the problem that the government was concerned about. Yet the CDC punished 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 was 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 in the summer of 2020 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.

The Wohlwends wanted to ensure that the federal government could not 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 National Association of Home Builders, sought to restore the rights of landlords and the rule of law so that the federal government could not exercise the same unlawful expansion of powers to enact similar nationwide measures.

Skyworks resulted in the first judicial victory against the moratorium, with a judge ruling that the CDC lacked statutory authority to enact the eviction ban. The U.S. Supreme Court eventually adopted that view in a similar case. Both of PLF’s suits (Skyworks and Chambless) were favorably resolved after the government conceded defeat.