May 6, 2021

Covering COVID-19 is a daily Poynter briefing of story ideas about the coronavirus and other timely topics for journalists, written by senior faculty Al Tompkins. Sign up here to have it delivered to your inbox every weekday morning.

A federal judge in Washington, D.C., has ruled that the Centers for Disease Control and Prevention overstepped its authority when it banned renter evictions during the pandemic. (Read the ruling.) The Justice Department has already said it plans to appeal.

This is the sixth time a federal court has considered the matter. Like similar cases in Texas and Ohio, the judge ruled in favor of landlords who are powerless to evict renters who owe, in some cases, a year in back rent. Moody’s Analytics said it could amount to $57 billion in overdue rent.

Because of the potential gravity of this ruling, I am going to dive a little deeper than normal into exploring it with you.

The case is Alabama Association of Realtors v. United States Department of Health and Human Services. Judge Dabney Friedrich wrote a concise summary:

Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not.

Other cases resulted in similar rulings that the CDC had exceeded its authority but did not issue injunctions, which would have frozen the evictions. Some of those rulings are under appeal, a process that could outlast the evictions moratorium. The current ban expires at the end of June 2021.

For nearly a year, landlords were forbidden from evicting renters who said they couldn’t afford to pay and had nowhere else to go. The CDC imposed the ban, in part, to avoid a surge in homelessness, which it said would present a significant health threat during the pandemic.

But landlords, many of them mom and pop owners, say their expenses have continued for a year with no income and little prospect that renters will pay tens of thousands of dollars in overdue rent once the ban is lifted.

The cornerstone of the dispute over the CDC’s authority comes in how the court reads this part of the Public Health Service Act. Read it carefully, especially the first sentence and the final part of the last sentence:

The (CDC), with the approval of the Secretary, is authorized 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. For purposes of carrying out and enforcing such regulations, the (Secretary) 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.

The first sentence points out the Department of Health and Human Services secretary “… is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.” If that was the end of it, clearly the secretary would have broad powers.

But opponents have said over and over in federal courts that you must consider the second sentence in the act, which significantly narrows the implied authority: “For purposes of carrying out and enforcing such regulations, the (Secretary) may provide for such inspection, fumigation, disinfection, sanitation, pest extermination,” and so on. If Congress intended the CDC to have broad authority, the landlords’ attorneys say, it would not have added that second sentence and listed specific actions.

The government lawyers point to the end of the paragraph, which says “and other measures, as in his judgment may be necessary,” which they say means the list of actions the CDC could take is not limited to pest control and the like.

Judge Friedrich didn’t buy the government’s pleas. She wrote:

The national eviction moratorium satisfies none of these textual limitations. Plainly, imposing a moratorium on evictions is different in nature than “inspect[ing], fumigat[ing],disinfect[ing], sanit[izing], . . . exterminat[ing] [or] destr[oying],”42 U.S.C. § 264(a),a potential source of infection. Moreover, interpreting the term “articles” to include evictions would stretch the term beyond its plain meaning. See Webster’s New International Dictionary 156(2d ed. 1945) (defining an “article” as “[a] thing of a particular class or kind” or “a commodity”.) And even if the meaning of the term “articles” could be stretched that far, the statute instructs that they must be “found to be so infected or contaminated as to be sources of dangerous infection to human beings.” The Secretary has made no such findings here.

The judge said if the limits to the CDC’s authority were unlimited, then Congress would be handing over unlimited authority, which raises serious constitutional problems.

The judge said straightforwardly that Congress did give the CDC some authority to control health threats, but “those means place concrete limits on the steps the Department can take to prevent the interstate and international spread of disease.”

We do not know yet, but may soon, what is next. CNN reports:

Diane Yentel, CEO of the National Low Income Housing Coalition, called for the Justice Department to appeal.

“The DOJ should immediately appeal the flawed ruling and the Biden administration should continue to vigorously defend and enforce the moratorium, at least until emergency rental assistance provided by Congress reaches the renters who need it to remain stably housed,” she said.

In the five other cases in which the CDC’s authority to ban evictions arose in federal courts, judges limited their rulings to affecting the people named in the lawsuit. But Judge Friedrich did not agree.

“The Department urges the Court to limit any vacatur order to the plaintiffs with standing before this Court. This position is at odds with settled precedent,” she wrote, which means she intends for this ruling to apply widely.

Depending on how quickly the Department of Justice can get an appeal rolling, it is possible that one of two things could happen, either of which could negate any significant effect from this ruling.

A protracted appeals process could mean the CDC’s moratorium expires before the court rules. Even if there was an appeals court decision against HHS, an appeal to the Supreme Court would take even longer.

The other thing that could happen is the Biden administration’s stimulus, which would supply renters’ relief, breaks through months of logjams. Congress allotted $50 billion to help with rent, but the money is bottled up in state and local government systems. Politico explores why the money has not gotten to the people who need it:

Nearly all of the more than $46 billion Congress set aside for rent relief over the last four months has already been distributed to state and local governments to disburse to residents in need, with the remaining funds required to go out by May 10. But very little of that money has actually reached distressed tenants and their landlords — many of whom are themselves hurting for cash because of the crisis.

“This is stuck in some sort of 50-state, maybe 1,000-county, morass,” said Jerry Howard, CEO of the National Association of Home Builders, which has sued to overturn the eviction ban on behalf of its landlord members. “You have private citizens who are still obligated to pay their mortgages and the operations of these apartment buildings, and they’re not even able to break even.”

Behind the impasse is the amount of time it has taken to access the federal money. Hundreds of state and local governments had to set up systems to dole out the funds so they could figure out who needs relief and verify how much they owe, and to make sure the assistance gets to landlords.

Journalists, this is truly worthy of your exploration. What is holding up the rent assistance where you are?

Can you be fired for refusing a COVID-19 vaccine? A May 17 court date could decide.

Another series of important federal lawsuits are now coming to a head. A federal court in the Central District of California will hear arguments in a lawsuit from teachers who want the court to stop local governments from ordering teachers to get vaccinated.

The Los Angles School District says it is not requiring vaccinations, but teachers want something more solid — like a judge’s order — since, the teachers say, the schools softened its stance once the suit was filed.

In just about every state, lawmakers have been considering legislation about mandatory vaccinations.

MarketWatch collected details of other lawsuits working their way through courts. One involves a former North Carolina deputy who lost his job after refusing to get vaccinated. A former detention center officer in Doña Ana County, New Mexico, also sued over mandatory vaccinations.

These lawsuits will have wide implications. MarketWatch explains:

Some 88% of employers say they’re planning to either demand or encourage staff to be vaccinated against COVID-19, according to an Arizona State University and Rockefeller Foundation survey of more than 1,300 employers.

Six in ten employers said they’d be asking for proof of vaccination from staff, the late April survey said.

One month earlier, 91% of CEOs heading large companies said their companies would be asking staff to keep them informed when they were vaccinated.

At the moment, employers have the federal Equal Employment Opportunity Commission on their side in requiring vaccinations. The EEOC gives this advice and warning to employers:

The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r).

Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.

A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.

If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace — or take any other action — unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

Even then, the EEOC says, the employer must consider whether the work can be done remotely. And there are other considerations:

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

CDC director defends requiring masks for kids playing outdoors

Children enjoy the spring weather in Manhattan on March 30, 2021. (STRF/STAR MAX/IPx 2021)

CDC Director Dr. Rochelle Walensky is defending the CDC’s guidance issued last week that children his summer playing outdoors at camps should be masked except for when eating, drinking, napping or swimming. She said unmasked and unvaccinated kids who were, for example, playing soccer this summer could spread the virus even if they are outdoors.

But she came back Wednesday to say if the Food and Drug Administration approves vaccines for younger kids, as it is expected to soon, then vaccinated kids could safely play outdoors without masks.

The recommendations came under an avalanche of criticism that the CDC was being too cautious. Dr. Anthony Fauci said that the CDC’s guidance is strict, but others went further. In an interview with New York magazine. Dimitri Christakis, an epidemiologist and the editor-in-chief of JAMA Pediatrics, called the rules “unfairly draconian.”

CVS, Walgreens, Rite Aid and Walmart offer walk-in COVID-19 vaccines

A sign outside a Rite Aid pharmacy that is administering COVID-19 vaccinations in Steelton, Pa., Friday, March 5, 2021. (AP Photo/Matt Rourke)

CVS says you can now come in without an appointment or go online and book a vaccination. The walk-ins begin in 8,000 locations in 49 states, plus Puerto Rico and Washington, D.C.

Walgreens is also offering walk-ins right away. Rite Aid started walk-ins last week. Sam’s Club and Walmart are also now in the walk-in vaccination business.

Students counter-protest a mask protest

The Beverly Hills Courier is documenting mask protesters approaching middle and elementary school children in Santa Monica and telling the kids they are brainwashed. The kids counter-protested.

There was also a loud and disruptive school board meeting in Salt Lake City. The protesters there were angry that the state’s health order requires the use of masks in schools through June 15.

We will see if there is an uptick in these kinds of protests as states drop their mask mandates and schools and businesses continue to require them, following the CDC’s guidelines.

UFO sightings are way up during the pandemic

It may be that we just had more time to look up, but the National UFO Reporting Center says sightings surged 16% last year across the United States.

You can look at the daily log here.

The New York Times says people in New York especially saw a dramatic rise, with sightings doubling year on year during 2020 to 300 total sightings.

Circle K’s post-pandemic subscription plan

I don’t know about you, but I have a nagging feeling that I am paying for stuff that is flying way under my radar. Enough with the subscriptions. Circle K now has a beverage subscription plan that, for $5.99 a month, allows you can come in every day and get a coffee or other beverage.

“We really see this an opportunity to drive traffic at a time that people are just starting to come out of the understandable cocoons that they’ve been in for the last 12-plus months,” said Kevin Lewis, chief marketing officer of Alimentation Couche-Tard, Circle K’s parent company.

The National Association of Convenience Stores says fountain drink sales dropped nearly 8% last year. This may be a way to get the register ringing again.

I was going to link you to a Forbes story on subscription overload, but an alert popped up that said I had reached my limit and asked me to subscribe.

We’ll be back tomorrow with a new edition of Covering COVID-19. Are you subscribed? Sign up here to get it delivered right to your inbox.

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Al Tompkins is one of America's most requested broadcast journalism and multimedia teachers and coaches. After nearly 30 years working as a reporter, photojournalist, producer,…
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