Date22 September 2021
AuthorRoberts, Connor S.

Table of Contents INTRODUCTION 1 I. Mass Evictions as a Result of the Pandemic 3 A. Housing Insecurity Prior to COVID-19 3 B. COVID-19's Effect on Housing Insecurity 3 C. Evictions Increase the Transmission of COVID-19 4 II. Housing Policy Prior to COVD-19 4 A. Lease-Termination Requirements Pre-COVID-19 4 B. The Supreme Court's Denial of Housing as a Fundamental Right in Lindsey v. Normet 5 III. Federal Response: CARES Act 6 and CDC Eviction Moratorium A. The CARES Act Eviction Moratorium 7 B. Centers for Disease Control's Eviction Moratorium 8 IV. Federal Court Decisions Concerning 9 Federal Eviction Moratoriums A. Unequal Application in District Courts 10 1. Legal Basis for the CDC Eviction Moratorium 10 2. Challenges in District Courts 11 i. Louisiana 12 ii. Georgia 12 iii. Texas 14 iv. Ohio 14 v. Takeaways 16 B. Federal Appellate Court Decisions 16 1. U.S. Court of Appeals for the Sixth Circuit 17 2. U.S. Court of Appeals for the District of Columbia Circuit 17 3. U.S. Court of Appeals for the Eleventh Circuit 19 C. Supreme Court Rulings 20 D. Eviction Moratoriums Stymie the Spread of COVID-19 21 V. Federal Eviction Moratoriums: Problem of Solution? 22 CONCLUSION 23 INTRODUCTION

With the emergence of COVID-19 as a deadly global pandemic, all people's lives have changed in some fashion. (1) When the COVID-19 pandemic began to spread rapidly in America, people were afraid and unsure of how to safeguard themselves and their families against a deadly, invisible threat. Across the country, people began to stockpile supplies and shelter in place to avoid contracting the disease. (2) Unfortunately, these measures could not save the lives of over 500,000 Americans. (3) Since then, multitudes of people have lost their jobs, their housing, and/or loved ones. (4) As a particularly virulent disease, COVID-19 spread along the widening cracks in American society. The fragility of American physical health and intellectual principles allowed the disease to thrive on these deep divisions within American culture. Requiring a cohesive, coordinated response from all citizens and government services to combat this spread, COVID-19 preyed on the severe lack of American social safety nets in healthcare, education, food security, and particularly housing.

The effects of the pandemic have disproportionately impacted the low-income and marginalized communities who were already on the precipice of economic disaster prior to the outbreak of COVID-19. (5) The U.S. Government's bans on evictions were designed to combat the spread of the virus and the subsequent economic fallout, but were the implemented mechanisms legal under the authorizing statute? In this comment, the commentor will focus on COVID-19's effects on minority and low-income renters in light of pre-existing housing issues; the federal eviction moratoriums and their statutory basis; decisions concerning the moratoriums from all levels of the federal court system in response to legal challenges; and the legality and effectiveness of the U.S. Government's attempts to stop the virus through eviction moratoriums in lieu of other potential methods. First, in Section I, by examining the precarious state of renters prior to the pandemic and the exacerbation of these issues during the pandemic; the commentor seeks to show the need for eviction moratoriums during the pandemic. Next, in Section II, the commentor will discuss housing policy and landlord-tenant relationships prior to the pandemic. In Section III, the commentor will outline the specific policies and effects of the CARES Act and Center for Disease Control's eviction moratoriums. In Section IV, the commentor will review and analyze the various interpretations and rulings concerning the nationwide moratorium made by district courts, appellate courts, and the US Supreme Court. Lastly, the commentor will analyze the effectiveness of these moratoriums in combating the spread of COVID-19 and other available options to protect vulnerable renters during a pandemic in light of the legal uncertainty of these moratoriums. By exploring these timely issues as a challenge for the realignment of the American zeitgeist, the commentor seeks to identify pervasive problems in American society that were present before the pandemic, and which will continue to disproportionately affect the economically most vulnerable once the pandemic-fueled support expires.


    In order to understand why the federal government implemented an eviction moratorium during the pandemic, this section will outline the financial precarity of renters prior to the outbreak of COVID-19; the impacts of COVID-19 upon housing insecurity; and how evictions help spread COVID-19.

    1. Housing Insecurity Prior To COVID-19

      Even before COVID-19 spread through American cities, millions of adults and children were on the financial precipice of being evicted from their housing. (6) As a result of low wages, increasing rental costs, and minimal federal support; 10.9 million renters spent over half of their total income on housing. (7) Specifically for impoverished households, one out of four low-income renters spend over 70% of their income on rent in 2018. (8) In the 2016 nationwide eviction data, 3.7 million evictions were filed across the country, in which African-American and Latinx renters were disproportionately evicted compared to white renters. (9) Rent-burdened households living in this precarious economic situation lack the financial security to adequately provide for families and cover other costs of living. (10) Additionally, the scarcity of affordable housing forces many families to live in cramped or substandard living conditions in order to survive. (11) To illustrate the lack of available options for low-income renters, 4 million affordable housing units were lost from 2011 to 2017 (12) with a shortage of 7 million low-income units available to the poorest of renters. (13) As a result of this preexisting housing precarity, many renters faced the economic and social hardships of the pandemic already on the verge of eviction.

    2. COVID-19's Effect on Housing Insecurity

      COVID-19 has exasperated the myriad of problems facing the most vulnerable sections of our society by causing widespread job loss and economic hardship. (14) Mitigation efforts aimed at curbing the spread of COVID-19 resulted in numerous closed businesses, and unemployment and lower wages increased at an unprecedented rate for renter households. (15) By July 2020, almost 50 million Americans filed for unemployment insurance and unemployment rates fluctuated between 11.1% and 14.4% since the start of the pandemic in March. (16) Over 20 million renters live in households that have experienced job loss as a result of COVID-19. (17) COVID-19 disproportionately affected minority workers; job or wage loss affected 61% of Latinx and 44% of African-American workers. (18) The impacts of these economic hardships have been compounded by COVID-19's high mortality in minority populations. (19)

    3. Evictions Increase the Transmission of COVID-19

      Not only are minorities over-represented in the eviction and job loss statistics, but these groups also face higher threats of serious illness and death due to COVID-19. (20) Low-income populations are often chronically ill or disabled and face social determinants of poor health, such as a lack of access to healthy foods and healthcare. (21) The higher risk of mortality coupled with the preexisting risk of eviction create an existential threat to low-income, minority households. Specifically, in order to mitigate infection from COVID-19, local and state laws required citizens to quarantine at home to stop the spread of the virus. Having sanitary and stable housing is essential for people to safeguard themselves from contracting and spreading the virus- especially when this class of people are statistically prone to higher morbidity rates. By extension, the governmental interest of protecting public health during a pandemic necessitates the need for the Federal Government to protect housing as a fundamental right.


    Before delving into the statutory basis for the eviction moratoriums, the general process of evictions must be discussed to fully understand why tenants needed protection during the pandemic. Additionally, the Supreme Court's decision in Lindsey v. Normet lays the foundation for the legal framework and trajectory of housing rights in America.

    1. Lease-Termination Requirements Pre-COVID-19

      Despite varying eviction processes across states, notice of termination is the fundamental requirement for eviction. (22) Notice requirements apply whether the termination is for violating terms of the lease or lapse of the term of the lease. (23) Notice of termination serves an important, threefold function for tenants: 1) the tenant is notified of a violation of the lease and will need to vacate the premises; 2) provides an opportunity for the tenant to remedy an alleged violation; and 3) a tenant can begin to prepare a defense to challenge the eviction. (24)

      First, as a private matter between landlord and tenant, notice allows the tenant to decide whether he or she wishes to challenge the termination of the lease without going to the courts or having any documentation filed in the public record. (25) This option allows tenants to avoid any adverse effects of being formally evicted when searching for future housing. Second, the ability for defendants to remedy the alleged violation of the lease provides an affirmative defense for eviction if the violation has been cured. (26) Lastly, notice of termination provides the tenant with precise reasons on which the landlord has terminated the lease. Therefore, the tenant may adequately prepare for the eviction hearing, and a failure to include a certain ground for termination may preclude the landlord from raising that issue in court. (27)


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