US CDC | Key Points

1. In addition to the Escambia County (Florida) court in Spicliff, Inc. v. Cowley, two federal courts recently weighed in on the legitimacy of the CDC’s September 4, 2020 Agency Order which imposed a nationwide moratorium on evictions. Terkel v. Centers for Disease Control & Prevention, 6:20-CV-00564, 2021 WL 742877 (E.D. Tex. Feb. 25, 2021); Skyworks, Ltd. v. Centers for Disease Control & Prevention, 5:20-CV-2407, 2021 WL 911720 (N.D. Ohio Mar. 10, 2021). Although both federal courts concluded the CDC lacked authority to impose the eviction moratorium, each court reached that conclusion on different legal grounds.

2. In Terkel, a Texas court found the CDC’s Agency Order exceeded the federal government’s authority under Article I, section 8, clause 3 of the United States Constitution (referred to as the Commerce Clause). In Skyworks an Ohio court found the same Agency Order invalid because it exceeded “the agency’s statutory authority provided in Section 361 of the Public Health Service Act…” Although section 361 authorizes the CDC to promulgate and enforce “regulations to protect the public health against the interstate spread of communicable diseases”, the court found the plain language of the statute did not authorize regulations prohibiting eviction actions.

3. Although the decisions in both Terkel and Spicliff remain the subject of pending appeals, there appear to be multiple statutory and constitutional grounds for declaring the CDC’s imposition of a nationwide moratorium on evictions invalid.

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