The Supreme Court Vacated the CDC Eviction Moratorium – Now What?

By Laura Burns*

The White House had warned that the CDC’s latest eviction moratorium may not withstand legal challenge. Justice Kavanaugh had signaled that it could not continue without explicit congressional approval. The CDC had issued the eviction moratorium the previous year to keep people in their homes during the pandemic. As more people lost their jobs and struggled to pay rent, the CDC warned that mass evictions would undermine public health control measures. On August 26, 2021, the Supreme Court struck down the moratorium. In doing so, the Supreme Court took away the shield that had protected an estimated 1.55 million renters from losing their homes. 

So, now what? Renters still need help. Following the Supreme Court’s decision, an estimated 3.5 million renters believe they are about to be evicted. Over two million of these live in states with no eviction moratorium. 

One answer is the federal Emergency Rental Assistance Program (ERA), a $46.5 million dollar fund for emergency rental assistance. Admittedly, the program has had a rough start. Despite it being one of the largest federal housing aid funds in generations, only a small fraction of it had been distributed by August 1, 2021. Experts identified several causes for the slow distribution, including burdensome documentation requirements for renters, insufficient staffing in administrative offices, and application requirements ill-suited for alternative employment and alternative leases.

Thankfully, the ERA is beginning to disburse funds more quickly. The Treasury Department distributed over $2.3 billion dollars in August, almost twice the amount distributed in the previous two months. Many local programs administering the funds are also adopting a more flexible approach to their application process, allowing self-attestation so that vulnerable renters are not stopped by onerous documentation requirements. 

But problems remain that the ERA program has not been able to address. Gene Sperling, the White House’s pandemic relief coordinator, expressed concerns that statistics are not picking up all vulnerable tenants, specifically referencing those who have self-evicted in order to avoid the humiliation of being evicted. 

Another major roadblock is that many landlords refuse to accept the federal funds. They do this for a variety of reasons. One is that many landlords do not want to abide by the terms of the ERA program, which include agreeing not to evict tenants for a prescribed number of days or increase the rent. Other causes include not understanding the tax implications, not wanting to provide a W-9, and not wanting to participate in a government program at all. A report by the National Low Income Housing Coalition notes that small-scale landlords who do not report their rental incomes to the IRS may be especially reticent.

The current housing market also disincentivizes landlords from participating in the program. Since the pandemic, some households have migrated away from large cities to smaller cities and suburbs. As the median rents rise in these areas, landlords are more eager to evict low-income renters and increase the rent. 

Apart from the landlord problem, many renters have alternative rent agreements that make it difficult to apply for ERA funds. Some low-income tenants do not have a formal lease, sublease from friends, or live in illegal units. Rental aid programs that require documentation of leases make it harder for these tenants to receive aid. Local programs that have simplified documentation requirements appear to be getting assistance to renters more quickly. However, many program administrators retain onerous requirements due to fraud concerns.

There are alternatives. As mentioned above, more and more programs are allowing self-attestation in the place of documentation. Many programs also offer options to circumvent a landlord’s refusal to participate and pay the rental assistance directly to the tenant. Direct-to-tenant payments also allow renters in alternative rent situations to receive assistance despite a lack of formal documentation. 

However, some local programs require additional documentation for direct-to-tenant payments that make the process more difficult for eligible tenants, including proof of payment. Additionally, many local programs have not adequately informed the public about the direct-to-tenant option, so many renters remain unaware of the possibility. Until these issues are addressed, many vulnerable renters will remain unable to access ERA funds. 

The rent assistance program undoubtedly plays a critical role in keeping people in their homes. Stakeholders are also implementing additional measures to prevent eviction. But it has only been just over a month since the moratorium ended, and its absence puts new pressure on these programs. With the Supreme Court’s decision leaving the fate of many renters uncertain, the effectiveness of the rental assistance program remains to be seen.

* Laura Burns, Class of 2022, Minnesota Journal of Law & Inequality Vol. 40 Staff Member