Even with CDC eviction ban, city wants to “help people pay”

LEXINGTON, Ky. (WTVQ) – Lexington and eight partner agencies will start at least talking though the application process with residents who may need rent, food or other assistance because of the coronavirus.

The Lexington Fayette County Urban Council approved a $1.9 million housing assistance program at its meeting Thursday night. Much of the program will be handled through the eight partner agencies.

The plan calls for the city to partner with eight non-profits on managing applications for up to $4,000 in rent or moving help per family (see some details rent plan )

That comes on top of a separate program — RISE — started three weeks for up to $2,000 for families in the service industry impacted by the coronavirus outbreak. That program has $500,000 available to help 250 families.

The system is designed to prevent people from double-dipping with local programs or the state program.

It also involves landlords directly.

The city already has more than 2,000 names on a list from sign ups that begin on a rental assistance web site in June. The average need among those families is about $2,500, said city Social Service Commissioner Chris Ford.

For information on the program, go to: https://covid19renterhelp.org
or call the Community Action Council or one of the eight agencies:
Urban League
Step by Step Single Mothers
Catholic Charities
AVOL Medically Vulnerable
GreenHouse17 DV Victims
The Nest Families
New Life Day Center
Community Action Council

People who are evicted for reasons other than not paying rent aren’t eligible.

The program comes as the Centers for Disease Control has imposed a nationwide ban on many evictions through the end of the year.

“We still need to get money in people’s hands to get this process moving along. We can’t let them keep building up overdue rent,” said Lexington Social Services Commissioner Chris Ford.

The same goes for landlords who also are shouldering a financial burden.

“Many of these landlords are involved in our affordable housing programs. We don’t need them to fold or get out. We need to be able to address both sides of the equation,” Ford added.

Ford suggested residents who need assistance to reach out to one of the eight partner agencies or call the 311, the city’s information services, and ask for either social services or homeless prevention.

Mayor Linda Gorton has recommended spending as much as $3 million in the effort. That, along with some other proposals, will be discussed later this month.

The state announced a $15 million assistance pool ad other guidelines Monday. The web site to apply will open Sept. 8. The city expects some of its program to dovetail into the state program.


It’s a huge step that could help ward off a major homelessness crisis in America. But it’s also one that Democrats and housing advocates say is avoiding the root problem, which Congress could solve by passing a second round of pandemic-related financial stimulus, and one that could face significant legal challenges, to boot.

The public health agency invoked federal health law to impose the policy, saying “housing stability helps protect public health because homelessness increases the likelihood of individuals moving into congregate settings, such as homeless shelters, which then puts individuals at higher risk to COVID-19,” according to the order.

Under the ban, landlords would face criminal penalties for evicting qualifying tenants for nonpayment of rent. According to the policy, property owners are still allowed to evict for other reasons, such as illegal activity or destruction of property. The moratorium replaces a previous eviction ban that expired at the end of July. The CDC did not respond to a request for comment from Vox.

The $2 trillion CARES Act passed in March imposed a 120-day moratorium on evictions for tenants in federally assisted housing or in homes with federally backed mortgages — extending protections to approximately 12.3 million rental housing units, according to the Urban Institute. The bill also gave the vast majority of Americans a one-time stimulus check and enabled an extra $600 per week in enhanced unemployment benefits for those laid off due to the pandemic, money that many families used to help pay their rent or mortgage.

But those eviction protections and enhanced unemployment benefits lapsed at the end of July, and Congress hasn’t yet come to an agreement to take further action on more coronavirus stimulus.

Treasury Secretary Steve Mnuchin told a House Oversight select committee Tuesday that the new CDC policy would protect about 40 million renters.

Both housing advocates and landlords said the CDC ban, without financial or rental assistance, doesn’t go far enough to protect both renters and rental property owners.

“The very least the federal government ought to do is assure each of us that we won’t lose our homes in the middle of a global pandemic,” National Low Income Housing Coalition CEO and President Diane Yentel told Politico. But Yentel went on to say that a moratorium without accompanying financial relief is a “half-measure that extends a financial cliff for renters to fall off of when the moratorium expires and back rent is owed.”

Landlord advocates expressed similar concerns, explaining that it can be difficult for property owners to pay their mortgages and taxes without any rent coming in. “Not only does an eviction moratorium not address renters’ real financial needs, a protracted eviction moratorium does nothing to address the financial pressures and obligations of rental property owners,” said Doug Bibby, the president of the National Multifamily Housing Council, in a statement about the moratorium.

House Democrats have proposed up to $100 billion in rental assistance in the next round of pandemic stimulus.

The Trump administration’s rule can help protect renters until Congress agrees to fund that — or fund some smaller amount. But the rule’s language also opens the door for landlords to add fees and extra charges for nonpayment of rent, and there is a limit on who can apply for protection from eviction. And that’s assuming the rule doesn’t immediately get overturned in court.

Who is — and isn’t — eligible, briefly explained

Covid-19 and the resulting economic fallout have put millions of people at risk of becoming homeless.

According to the financial journal Stout, nearly two in five renters are at risk of being served eviction papers in the coming months thanks to the coronavirus pandemic and resulting economic collapse. A CNBC report estimated there could be as many as 40 million evictions caused by the pandemic.

But the moratorium the CDC put in place isn’t a universal ban on evictions. In order to qualify, single renters making less than $99,000 a year or couples making less than $198,000 are eligible. That encompasses a fairly large number of Americans. However, they must prove that they made an effort to pay their rent and have exhausted other federal rental assistance programs. Forms will be available on the CDC website once the order is published in the Federal Register.

According to Politico, renters must prove that eviction will make them homeless or that they’d have to double up with someone else in close quarters, which would present a pandemic health risk.

While most renters won’t be at risk for eviction until the end of the year thanks to the ban, the policy does not waive rental payments due during that time period. So any nonpayment would accrue until the renter either pays or the ban expires, essentially kicking a potential emergency crisis down the road for just a few months.

The eviction moratorium is likely to run into legal trouble

No federal law explicitly provides for an eviction moratorium. Instead, the CDC relied on a broadly worded public health law that permits the CDC’s director to “make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” Thus, the CDC may draft rules intended to prevent diseases from spreading across state borders.

In theory, an eviction moratorium would make it somewhat less likely that Covid-19 would spread across state lines. If a person who is infected with the virus is evicted in New York, for example, they might travel to New Jersey to stay on a friend’s couch and wind up infecting that friend in the process.

But, as American University law professor Lindsay Wiley noted on Twitter, the CDC’s eviction moratorium is only lawful under a particular aggressive reading of the agency’s statutory authority. And there is good reason to believe that the moratorium will not survive a court challenge.

Most significantly, in Gundy v. United States (2019), Justice Neil Gorsuch called for fairly strict new limits on Congress’s ability to authorize federal agencies to regulate. A law authorizing such regulation, Gorsuch wrote, should be struck down unless it is “‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.”

And admittedly, Gorsuch’s opinion is vague — just how “definite and precise” does a federal law have to be in order to survive contact with the courts? But the public health law the CDC relied upon in creating the eviction moratorium is also quite vague. Again, that law permits the CDC director to make regulations that “in his judgment are necessary” to prevent the spread of communicable diseases across state or international borders.

It is fairly likely, in other words, that a lower court could apply the approach Gorsuch laid out in Gundy — and if they did, they would likely strike down the eviction moratorium. The point of Gorsuch’s Gundy opinion is that Congress should not be able to delegate too much discretionary power to an agency — Congress must, instead, provide agencies with clear instructions on how to regulate. But Congress did not provide especially clear instructions when it allowed the CDC to make public health regulations.

To be clear, it is far from certain that the Supreme Court would strike down the moratorium. There are good reasons why public health agencies should have broad regulatory power. Public health emergencies are unpredictable, and Congress would have a tough time drafting a statute that anticipates every step a public health agency might need to take in order to control a pandemic.

Moreover, while Chief Justice John Roberts has largely been sympathetic to Gorsuch’s approach to agency regulation, he’s also urged judges to defer to public health officials who are struggling to control the pandemic. Roberts joined Gorsuch’s opinion in Gundy, but the chief justice may have second thoughts if Gorsuch’s approach could exacerbate a pandemic.

In any event, the fate of the eviction moratorium is uncertain once a landlord decides to challenge it in court. And even if Roberts eventually joined the Supreme Court’s liberal minority in upholding the moratorium, that moratorium could potentially be put on hold by a conservative lower-court judge while this case is making its way to the justices.

The threat of eviction, in other words, is likely to hang over many renters until Congress gets its act together and provides them with clear statutory relief.


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