Advocates Call For State, Federal Action After Supreme Court Blocks CDC Eviction Protections

The Supreme Court building. Photo from stock.adobe.com.

Local leaders and advocates are calling for state and congressional action on evictions after the U.S. Supreme Court blocked federal protections for tenants Thursday.

The Centers for Disease Control and Prevention (CDC) issued limited eviction protections based on COVID-19 transmission levels earlier this month after more sweeping protections expired at the end of July. President Biden acknowledged at the time that the emergency protections would be “likely to face obstacles,” since the Supreme Court had previously indicated that Congress would need to pass any future protections.

Those protections essentially allowed tenants an affirmative defense in certain types of eviction cases including failure to pay rent. Fair housing advocates have cautioned against characterizing the order as a “moratorium,” since it requires tenants to show up to court and successfully raise the affirmative defense to temporarily avert an eviction.

Similar state-level protections from Gov. Lawrence J. Hogan Jr. (R) phased out earlier this month. Those protections also provided tenants with an affirmative defense. Local leaders have urged Hogan to reinstate those protections in recent weeks, to no avail.

“Baltimore has millions of dollars coming to us from the state and federal governments to help renters pay their rent. We need more time and tools to distribute the funds. This resolution calls on Governor Hogan to do the right thing,” Baltimore City Councilmember Odette Ramos (D), the lead sponsor of a resolution calling on Hogan to extend state protections, said in a statement earlier this month.

In an unsigned majority opinion issued Thursday, justices argued that the CDC didn’t have the authority to take such sweeping action.

“It would be one thing if Congress had specifically authorized the action that the CDC has taken,” the opinion reads. “But that has not happened. Instead, the CDC has imposed a nationwide moratorium on evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination. It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.”

The court’s liberal justices, Stephen Breyer, Sonia Sotomayor and Elena Kagan, dissented. The trio wrote that the CDC’s more granular protections, which vary based on local transmission rates, are within the health agency’s purview.

“The public interest is not favored by the spread of disease or a court’s second-guessing of the CDC’s judgment,” the justices wrote in their dissenting opinion. “The CDC has determined that ‘[a] surge in evictions could lead to the immediate and significant movement of large numbers of persons from lower density to higher density housing. . . when the highly transmissible Delta variant is driving COVID–19 cases at an unprecedented rate.’”

Some members of Maryland’s congressional delegation pledged to take action on evictions when Congress returns. Congressman Anthony G. Brown (D-Md.) said he would vote to extend the federal eviction protections, and also urged Hogan to extend state protections.

“I stand ready to vote to extend the federal eviction moratorium and call on my Republican colleagues to end their opposition and put the needs of American families first,” Brown said in a statement. “I urge Governor Hogan to immediately extend our state’s now expired moratorium on evictions to protect working families and reiterate my call for state and local leaders to expedite the disbursement of federal funding through the American Rescue Plan’s Emergency Rental Assistance program to support Marylanders in need. What we do in the next several weeks can mean the difference in families’ lives.”

Sen. Chris Van Hollen (D-Md.) likewise said in a statement that Congress should extend the eviction protects.

“The Supreme Court’s decision to end the eviction moratorium puts thousands of Marylanders at risk of losing the roofs over their heads, but it’s also unacceptable that only a small share of the $753 million in federal funds for Maryland COVID-19 emergency rent payments have been used to help keep folks in their homes,” he said. “Federal, state, and local officials must cut the red tape and distribute these funds promptly so renters can stay in their homes and landlords can pay their own bills. In the meantime, as the Delta variant continues to spread, Congress should take action to extend the eviction moratorium.”

Efforts by congressional Democrats to extend the eviction protections previously fell short before they recessed for August.

Uncertainty for tenants

Fair housing advocates have long warned that, despite the now-expired federal and state protections, tenants have been facing eviction throughout the pandemic. There are roughly 129,000 households behind on rent in Maryland, according to the National Equity Atlas. An estimated 78% of the households are people of color, 62% have an income of less than $50,000 per year, and 42% are unemployed.

The end of federal and state eviction protections mean that Maryland courts will begin moving forward with judgements that have been reserved in cases where tenants have successfully raised those affirmative defenses. Maryland District Court Chief Judge John P. Morrissey said in an Aug. 4 communication that “cases where a reserved judgment was entered as a judgment for possession between August 1, 2021 and August 3, 2021, are stayed for as long as those counties are subject to the new CDC agency order.” With both state and federal protections now ended, the court will begin processing reserved judgements.

State and federal elected officials, alongside advocacy groups for tenants and landlords alike, have called on local governments to quickly distribute rent relief funding. Local jurisdictions have been tasked with distributing federal relief funding throughout the pandemic, but some local officials say red tape and cumbersome applications mean that rent relief has been slow to get out the door.

“The federal government managed to create guidelines that make it harder to get money out, even though they gave us the money,” Montgomery County Executive Marc B. Elrich (D) previously told Maryland Matters. “It still wasn’t like we could just use our existing programs and keep pushing money out through the windows or programs we already had. We had to reconfigure this.”

Jurisdictions’ approach to distributing rent relief varies. In addition to individual applications, some local governments have partnered with United Way to work with landlords and bundle large number of eligible tenants together in an effort to streamline rent relief. That program started in Baltimore County, but recently expanded to include other jurisdictions.

Elrich and other local leaders asked Hogan in May to institute a 90-120 day moratorium on all evictions to give them more time to get rent relief funding to tenants and landlords, but no such order was put in place. The Biden administration has recently ramped up efforts to speed up rent relief distribution, including more lenient treasury guidance issued earlier this week.

Court backlogs due to prior pandemic-related closures could mean that newly filed eviction cases take months until they’re heard, Adam Skolnik, the executive director of the Maryland Multi-Housing Association, said. While some fair housing advocates worry that courts will try to rapidly work through that backlog, Skolnik said the delays practically amount to a “de facto moratorium.”

He added that loosened Treasury Department guidance and allowing local governments for flexibility in distributing rent relief will be “hugely important” in preventing evictions.

Ramos said even one eviction caused by the pandemic or a pandemic-related loss of income is one too many.

“We’re not seeing a mass of evictions because the courts are slow, but we are still seeing evictions,” Ramos said.

She added that she wants to see rental assistance reaching tenants and landlords before the eviction process begins.

“We want to make sure that everybody who is having a COVID impact is helped, and landlords are part of that,” Ramos said. “That’s why we need more time to be able to get rental assistance out the door.”

Zafar Shah, an attorney with the Public Justice Center, said many local protections for tenants are “dwindling” because they were tied to the statewide catastrophic health emergency or state of emergency. He also noted that local jurisdictions don’t have the authority to institute their own eviction moratoriums.

Tenants would have received additional protections that would’ve lasted for months after Maryland’s catastrophic health emergency expired under legislation from Del. Jheanelle K. Wilkins (D-Montgomery), but that proposal failed to pass before the end of the 2021 legislative session earlier this year.

“We could have acted to put policy in place to ensure that policy protections and law would be there at this critical moment for residents,” Wilkins previously said. “We wouldn’t have to depend on Congress and the president and the governor. We had the opportunity during session to … put this in place, and it stalled in the Senate and that’s very disappointing.”

Advocates call for special session 

In addition to calling for congressional action and for Hogan to extend state protections, some tenant advocates said Friday that the General Assembly should call a special session to address eviction prevention and rent relief. Legislative leaders are already tentatively planning a special session in December to handle congressional redistricting.

“This doesn’t have to happen,” a Friday statement from Baltimore Renters United and Renters United Maryland reads. “Congress can extend the CDC Order. Governor Hogan can issue an order that pauses evictions when a rental assistance application has been filed. The General Assembly can call a special session and do the same.”

Baltimore Renters United and Renters United Maryland also urged lawmakers to fund the access to counsel initiative passed by the General Assembly earlier this year. A bill that would have raised certain surcharges and court filing fees to pay for that access to counsel failed to pass before the end of the 2021 legislative session.

Shah said he believes a special session on housing would be “warranted.” He said he has little confidence that Congress will act on eviction protections. He also warned that waiting until December or January to act in Maryland could lead to a surge of evictions. He said that, according to district court data, more than 40,000 eviction cases were filed in July.

Shah said it’s important to not only extend eviction protections for tenants, but foreclosure protections for homeowners as well. The state is facing “twin trains” of eviction and foreclosure happening at the same time,” he said.

“We really do need Annapolis to act, to respond,” Shah said. “That’s what everyone expects right now.”

A list of local and state rent relief programs can be found here.