by Ashley Archibald
A small clutch of people with signs at the corner of Broadway and Pike caught Danielle Rogers’ eye the evening of Aug. 27. The mother of five stopped and accepted a half sheet of paper offered by one of the demonstrators from Cancel the Rent, part of a nationwide movement to relieve millions of households from the crushing burden of rent debt and threat of eviction as the coronavirus pandemic continues to surge.
Fewer than 24 hours before, the U.S. Supreme Court handed down an eight-page, unsigned opinion ending the federal moratorium on evictions imposed by the Centers for Disease Control and Prevention (CDC) intended to prevent the spread of COVID-19. In so doing, the court opened the door to millions of evictions across the country.
Rogers had heard about the decision already, and it struck close to home. She knows the fear of homelessness. She and three of her children were evicted and had to live in their vehicle after falling behind on rent herself in 2020 after losing her job due to the coronavirus pandemic. She secured an apartment in Seattle but had to sell her car to keep up with rent payments. Now she’s two months behind and fearful of what could come next.
“I had just started to get beyond that,” Rogers said. “I know how easy it is to go to nothing.”
CDC Authority Is Vague
In the Supreme Court opinion, the majority of justices reasoned that the CDC had overstepped its authority when it used a “decades old statute” that allows the agency to require measures like fumigation and pest extermination.
“It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts,” the majority wrote.
The law in question was the Public Health Service Act, originally passed in 1944. The law affords the Surgeon General the power to impose regulations to prevent the transmission of communicable diseases. However, the language mostly focuses on the ability to address animals in homes as a vector for disease, but there is room for interpretation. It reads: “For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.” (Emphasis our own).
The CDC relied on that law to make and then extend a nationwide eviction moratorium after Congress’ 120-day moratorium expired in July 2020. While Congress’ effort only offered protection to tenants in buildings that participated in federal assistance programs or had federally backed loans, the CDC’s measure applied to any rental property.
According to Eviction Lab, a Princeton University project, the CDC’s more expansive intervention prevented as many as 1.55 million evictions nationwide in its first 11 months.
But in November 2020, realtor associations in Alabama and Georgia challenged the CDC moratorium and a district court judge in Washington, D.C. sided with them, knocking it down. The federal government then appealed to the Supreme Court, which allowed the moratorium to stand in part because it was about to expire anyway. When the CDC renewed the prohibition on evictions in areas of the country with high COVID-19 transmission rates in August 2021, the plaintiffs once again went to court to ask for the eviction ban to end. The conservative justices reconsidered.
They handed down their decision around 9:30 p.m. EST on Aug. 26. Though technically unsigned, the court’s three liberal justices — Elena Kagan, Sonia Sotomayor, and Stephen Breyer — dissented.
The thousands of dollars in lost rental income was an injury, Breyer wrote, but it doesn’t compare to the human cost of a massive wave of evictions during a pandemic. The CDC estimated that some evicted people face a 30% increase in risk of contracting the coronavirus, and that thousands of people could die of the disease if the moratorium ended.
“The public interest strongly favors respecting the CDC’s judgment at this moment, when over 90% of counties are experiencing high transmission rates,” Breyer wrote. “It was in the single digits when we considered the CDC’s previous moratorium order and denied applicants’ earlier motion.”
Most Rental Assistance Still Not Distributed
Breyer also argued that relief for landlords was on the way. Congress approved $46.5 billion in rental assistance to pay off back rent. That money will help people like Michael, an older gentleman who paused on his way out of the grocery store to ask about the Cancel the Rent rally.
Michael (who didn’t want to use his last name out of concern for being recognized by his landlord) is six months behind on rent. He lost his disability payments during the pandemic — he got a notice from the government saying he needed to see a doctor for a medical evaluation, but because of COVID-19 restrictions, he couldn’t get an appointment in time and his payments lapsed. He’s been running errands for a neighbor for pocket money.
Michael got a letter recently saying that his landlord is partnering with Byrd Barr Place, a nonprofit that is helping to distribute money to pay off back rent. He hasn’t been told much else. Before we could speak more, Michael said he had to move along quickly to preserve the pint of ice cream for his neighbor that was melting in the basket of his walker.
Although the money is there, it largely hasn’t made it to renters and their landlords yet. According to reporting by the New York Times, 89% of that money hasn’t been distributed yet. The Household Pulse Survey conducted by the U.S. Census Bureau estimates that 173,589 households in Washington State alone are at least one month behind on rent, and 60,305 households think it is likely they’ll face eviction in the next two months. That’s despite state and local programs meant to stem what advocates fear will be a surge of eviction filings in the near future.
The pace at which assistance is being distributed is glacial: The survey estimates that only 12,861 people in Washington have applied for and received rental assistance, while roughly twice that number applied and are awaiting a response. Another 116,211 households who may qualify haven’t applied for help at all.
White House officials are urging local governments to get the cash out the door faster and enact their own moratoriums to save renters. The Treasury Department, which oversees the program, announced changes that would allow local governments to accept tenants’ self-reported financial information on application forms, among other modifications.
The heads of the Treasury, Justice, and Housing and Urban Development departments sent a letter urging governors and courts to let people access emergency rental assistance before resorting to eviction. “Our bottom line is this: No one should be evicted before they have the chance to apply for rental assistance, and no eviction should move forward until that application has been processed,” they wrote.
Advocates Say More Federal Help Is Needed
Seattle residents like Rogers and Michael are, at least for the moment, not living in fear of eviction. Seattle passed its own moratorium on evictions that Mayor Jenny Durkan extended through Sept. 30 and a separate 2020 city law also prohibits eviction between the months of December and March. The state’s eviction moratorium, however, ended in June. Gov. Jay Inslee replaced it with a “bridge,” which does not allow eviction for nonpayment of rent prior to Aug. 1 or for nonpayment between Aug. 1 and Sept. 30 if the tenant “has demonstrably taken action to pay rent.” But evictions for other reasons under state law are permitted.
The bridge isn’t enough, said Jane Cutter, a volunteer with Cancel the Rent who helped organize the Aug. 27 rally. Congress needs to step in and enact its own moratorium to protect renters.
“Nobody should be evicted at this time due to simple inability to pay their rent considering everything that we’re dealing with right now with COVID, the delta variant, a significant portion of the population not vaccinated for a variety of reasons, and the economy not in a position to be fully operational,” Cutter said.
Cancel the Rent wants Congress to go further. They’re calling for canceling rent and mortgage payments and supporting small businesses, many of which were shut out of the federal government’s initial Paycheck Protection Program meant to help them weather the impacts of the pandemic.
In its decision, the Supreme Court, too, put the onus squarely upon Congress.
“If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it,” the justices wrote.
Rep. Pramila Jayapal (D-WA) is on board. Jayapal was one of 30 co-sponsors of the Rent and Mortgage Cancellation Act back in April 2020 when the pandemic lockdowns had just begun. She sent a letter to Speaker of the House Nancy Pelosi and Senate Majority Leader Chuck Schumer calling on them to extend the eviction moratorium through “must-pass legislation.”
The Supreme Court decision was “cruel and wrong,” Jayapal said in a statement. “If the public health crisis hasn’t ended, then the relief to survive it shouldn’t either,” she said. “We must immediately do everything possible to keep people in their homes. This is a matter of life and death.”
Rep. Cathy McMorris Rodgers (R-WA) released a statement blaming the Biden administration for extending an unconstitutional eviction moratorium and called for the passage of the Renter Protection Act, a Republican-backed measure that would consolidate emergency rental assistance programs and require the money to be distributed by the end of the year.
In Washington, at least, tenants have more security than those in most of the rest of the country. The state Legislature passed a right-to-counsel law in April that guarantees low-income tenants an attorney should they end up in eviction proceedings. According to advocates, roughly 10% of tenants go to court with an attorney compared to 90% of landlords.
The State also passed “just cause” tenant protections that make it harder to evict month-to-month tenants, but King County went further in June, capping move-in fees, requiring four months’ notice on significant rent increases, and adding protections against evictions for late rent, among other things.
Ashley Archibald is a freelance journalist with previous work in Real Change, the Santa Monica Daily Press, and the Union Democrat. Her work focuses on policy and economic development.
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