In a February 25, 2021 decision, U.S. District Judge J. Campbell Barker found that the nationwide eviction moratorium issued by the Centers for Disease Control and Prevention (“CDC”) exceeds the scope of its constitutional power.  That power is found in Article I (Section 8, Clause 3) of the United States Constitution, commonly known as the Commerce Clause, which grants the federal government the authority to regulate commerce “among the several States.”

The Court arrived at this conclusion because the CDC order does not limit its application based on a connection to interstate commerce. Judge Barker found that “[t]he fact that an activity has some ultimate tie or correlation to national-employment or socio-economic statistics, as noted in the administrative record here, is not enough of a nexus under the constitutional test.” Additionally, the Court found that the CDC’s efforts to regulate private property rights, for which it lacks constitutional authority, was deemed to tread into an area of traditional State concern. As such, the challenged CDC moratorium was held unlawful order as it exceeds the power granted to the federal government under the Commerce Clause to regulate commerce among the States.

Judge Barker also pointed out – and the government admitted – that “the federal government has never before invoked its commerce power to impose a nationwide eviction moratorium.”  Nor was any precedential example of a longstanding analogous use of federal power presented as a basis to uphold the CDC order in dispute.

In its decision, the Court merely declared the scope of constitutional power and stopped short of issuing an injunction, in light of the CDC’s representations to the court that it would respect the declaratory judgment.  Although this remains an option, should it become necessary. As does an appeal of this Order by the federal government.

Of course, irrespective of the enforceability of the CDC order, New York state evictions remain subject to various restrictions and stays of enforcement, including a pause on residential evictions which technically expired February 26, 2021, after which a tenant simply needs to submit a standardized hardship declaration form in order to extend the eviction ban through May 1, 2021.

Meanwhile, Governor Cuomo’s most recent Executive Order 202.92, which continued all directives made by the repeatedly extended initial Executive Order 202 of March 7, 2020, and includes a moratorium on initiating a proceeding or enforcement of an eviction of any commercial tenant for nonpayment of rent, also expired February 26, 2021.  However, the Governor indicated a desire to continue the prohibition of commercial evictions through May 1, 2021 in his State of the State address. Additionally, NYS Senate Bill S471A, which would prevent commercial evictions through May 1, 2021 for nonpayment of rent, or for holding over after the expiration of a lease – also upon the mere submission of a standardized hardship declaration form – has passed both houses of the legislature and awaits the Governor’s signature.

This constantly shifting landscape continues to transform the way landlords must deal with defaulting tenants.  Each situation is unique and landlords are advised to consult with a knowledgeable attorney, capable of navigating these complex and evolving enforcement requirements and to discuss options and resources that can be utilized to assist in recovering possession of their property and collecting past due rent. Please contact the Harris Beach attorney you typically work with for support.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.