Eviction Moratoriums: Legal History and Constitutional Limits

Eviction moratoriums are government-imposed suspensions or limitations on a landlord's legal ability to remove tenants from residential or commercial property, typically enacted during declared emergencies. This page traces the legal history of moratorium authority in the United States, examines the constitutional doctrines that both enable and constrain such measures, and maps the structural mechanics through which federal, state, and local governments have deployed them. Understanding these limits is essential to interpreting the eviction law overview for the US and analyzing how federal and state eviction laws interact during crisis periods.

• Definition and Scope
• Core Mechanics or Structure
• Causal Relationships or Drivers
• Classification Boundaries
• Tradeoffs and Tensions
• Common Misconceptions
• Checklist or Steps
• Reference Table or Matrix

Definition and Scope

An eviction moratorium is a legally operative instrument — enacted through statute, executive order, or agency regulation — that suspends a landlord's right to initiate or complete eviction proceedings for a defined period and under specified conditions. The term encompasses three distinct operational forms: complete filing bans (prohibiting any new unlawful detainer actions), enforcement stays (permitting filing but halting sheriff execution of writs), and conditional deferrals (requiring tenants to attest financial hardship before protections attach).

Moratoriums operate at the intersection of property law, emergency powers doctrine, and constitutional limitations. At the federal level, the primary statutory hook for emergency housing interventions is 42 U.S.C. § 264, the Public Health Service Act provision authorizing the Secretary of Health and Human Services to make and enforce regulations necessary to prevent the spread of communicable diseases. The Centers for Disease Control and Prevention (CDC) relied on this provision to issue its nationwide moratorium order in September 2020 (CDC Order, 85 Fed. Reg. 55292).

State moratoriums derive from general police powers reserved to states under the Tenth Amendment, channeled through gubernatorial emergency proclamation authority and legislative action. At least 43 states and the District of Columbia implemented some form of residential eviction restriction between March 2020 and mid-2021, according to tracking by the National Conference of State Legislatures (NCSL). Local jurisdictions — including Los Angeles, New York City, and Seattle — layered additional protections on top of state measures, creating a multi-tier regulatory environment that intersected with notice to quit legal requirements and unlawful detainer procedures.

Core Mechanics or Structure

A moratorium's legal structure depends on three operative components: the triggering authority, the protected class definition, and the enforcement mechanism.

Triggering Authority. Federal moratoriums require an explicit statutory delegation to the issuing agency. The CDC Order's legality was contested specifically because courts questioned whether 42 U.S.C. § 264 authorized the CDC to regulate private landlord-tenant relationships — a question ultimately resolved in Alabama Association of Realtors v. Department of Health and Human Services, 594 U.S. ___ (2021) (Supreme Court slip opinion), where the Supreme Court held the CDC lacked authority to extend the moratorium beyond its August 2021 expiration without clear congressional authorization.

State moratoriums typically invoke emergency management statutes that grant governors broad temporary authority. California's COVID-19 Tenant Relief Act (AB 3088, 2020) and its successors were enacted by the legislature, providing a stronger statutory foundation than executive-only orders.

Protected Class Definition. Moratoriums vary in which tenants qualify. The CDC Order required tenants to submit a self-certification declaration attesting to income thresholds (annual income at or below $99,000 for single filers, or $198,000 for joint filers) and inability to pay full rent due to income loss, per the original order text (85 Fed. Reg. 55292). State instruments used different thresholds, some targeting households at or below 80% of Area Median Income (AMI) as defined by the U.S. Department of Housing and Urban Development (HUD).

Enforcement Mechanism. Moratoriums typically operate by either (1) stripping courts of jurisdiction to hear eviction cases during the covered period, (2) requiring courts to stay proceedings upon tenant attestation, or (3) directing law enforcement to decline executing writs of possession. The eviction court procedures framework remains in place, but enforcement pauses at designated procedural checkpoints.

Causal Relationships or Drivers

Moratoriums are historically triggered by events producing sudden, widespread income disruption or displacement risk that the ordinary eviction process step-by-step cannot accommodate without large-scale homelessness consequences.

Public Health Emergency Doctrine. The central causal argument for the CDC's 2020 order was that mass evictions would force displaced tenants into congregate settings — shelters, doubled-up households — accelerating pathogen transmission. The CDC cited studies estimating that moratoriums reduced COVID-19 infection rates by approximately 3.8% per month in jurisdictions that allowed them to expire prematurely, though the research-based basis for this figure has been contested in subsequent literature reviews.

Economic Shock Transmission. The Great Depression produced the earliest modern U.S. moratoriums. Minnesota's Mortgage Moratorium Law of 1933 was challenged in Home Building & Loan Association v. Blaisdell, 290 U.S. 398 (1934) (Justia case summary), the foundational Supreme Court decision upholding emergency mortgage relief under the Contracts Clause. The Court held that a state may temporarily impair contract obligations when facing a genuine emergency, provided the impairment is reasonable in scope and limited in duration.

Housing Instability Feedback Loops. Research published by Princeton University's Eviction Lab documents that eviction filings concentrate in census tracts with poverty rates exceeding 30%, creating compounding instability that interacts with employment disruption. This structural vulnerability is the policy rationale states cite when enacting protective measures in non-pandemic contexts, such as natural disaster moratoriums following major hurricanes.

Classification Boundaries

Moratoriums fall into four primary categories based on their legal basis and scope:

1. Federal Regulatory Moratoriums — Issued under agency authority (e.g., CDC under 42 U.S.C. § 264; FHFA directives to Fannie Mae and Freddie Mac servicers under 12 U.S.C. § 4617). Limited to properties within agency jurisdiction.

2. Federal Legislative Moratoriums — Enacted directly by Congress, as in Section 4024 of the CARES Act (P.L. 116-136), which imposed a 120-day moratorium on evictions for nonpayment in properties with federally backed mortgages or HUD assistance (CARES Act § 4024 text via Congress.gov). The CARES Act eviction protections page covers this instrument in detail.

3. State Executive Moratoriums — Issued by governors under emergency proclamation authority, typically broader in property coverage but bounded by state constitutional limits and subject to legislative override.

4. Local/Municipal Moratoriums — Enacted by city or county ordinance, often extending state protections in duration or coverage. Los Angeles County's eviction moratorium, for instance, remained partially in effect past state-level expirations through explicit Board of Supervisors action.

The boundary between categories matters for determining which landlords are covered, which courts have jurisdiction over challenges, and what remedies (if any) are available to property owners who suffer financial loss due to the restriction.

Tradeoffs and Tensions

Contracts Clause vs. Emergency Police Power. The core constitutional tension pits Article I, § 10's prohibition on laws impairing contract obligations against the states' inherent police power to protect public welfare. Blaisdell established that temporary, reasonable impairments survive Contracts Clause review; however, the Court has not defined precise durational limits. Moratoriums exceeding 18–24 months begin generating stronger Contracts Clause challenges, as seen in litigation over extended Los Angeles County measures.

Takings Clause Exposure. Landlord groups in multiple jurisdictions argued that forced tenancy constitutes a regulatory taking under the Fifth Amendment. Courts have generally rejected per se physical taking arguments, applying instead the Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) three-factor balancing test. No federal circuit court has held a COVID-era moratorium to constitute a compensable taking, though the issue remains unresolved at the state level in California.

Due Process and Major Questions Doctrine. Alabama Association of Realtors (2021) applied the major questions doctrine — requiring clear congressional authorization for agency rules of vast economic and political significance — to invalidate the CDC extension. This ruling reshaped the available federal toolkit and effectively confined future federal moratoriums to legislatively enacted forms.

Landlord Financial Cascades. Small landlords (defined by HUD as owners of 1–4 unit properties) represent approximately 41% of the rental stock nationally, per HUD's American Housing Survey. Extended moratoriums without corresponding rental assistance disbursement create mortgage default risk for these owners, particularly in markets where operating margins are thin.

Common Misconceptions

Misconception 1: Moratoriums cancel rent debt.
No enacted federal or state moratorium eliminated the underlying rent obligation. The CDC Order, CARES Act § 4024, and all reviewed state instruments explicitly preserved the landlord's right to collect accrued rent after the moratorium period ended. Tenants who did not pay during covered periods remained legally liable for the accumulated debt.

Misconception 2: The CDC moratorium covered all rental properties.
The original September 2020 CDC Order applied only to residential properties. Commercial properties were excluded. Additionally, properties without federal backing were outside CARES Act § 4024's scope. Landlord-tenant law at the state level filled gaps, but coverage was never universal.

Misconception 3: Moratoriums eliminated the eviction process entirely.
Most moratoriums suspended enforcement, not the entire legal framework. Landlords in many jurisdictions could still file for just cause eviction on non-rent-related grounds such as lease violations (lease violations as eviction grounds), criminal activity, or owner move-in. The self-help eviction prohibition remained independently enforceable throughout.

Misconception 4: Local moratoriums automatically align with state law.
Local instruments can be more protective than state law but cannot be less protective. Where a state moratorium expired, a local ordinance could lawfully extend coverage — and did so in jurisdictions including Los Angeles and San Francisco. Tenants and landlords must examine local ordinances independently of state law.

Checklist or Steps

Structural Components Present in a Legally Valid Moratorium

The following elements appear consistently in moratoriums that have survived constitutional challenge. This is a descriptive inventory, not legal guidance:

• [ ] Explicit statutory or constitutional basis identified in the instrument's preamble
• [ ] Declared emergency or public welfare finding with factual support in the record
• [ ] Defined covered property classes (residential/commercial, federally backed/all)
• [ ] Defined tenant eligibility criteria (income threshold, self-certification requirement, or universal coverage)
• [ ] Specific covered conduct (filing ban, enforcement stay, or conditional deferral)
• [ ] Explicit preservation of rent debt obligations
• [ ] Defined durational limit tied to emergency termination or a fixed calendar date
• [ ] Carve-outs for non-covered eviction grounds (criminal activity, lease violations, owner move-in)
• [ ] Enforcement mechanism specified (court jurisdiction rule, law enforcement directive, or both)
• [ ] Severability clause preserving remaining provisions if one element is invalidated

Reference Table or Matrix

References

• CDC Order, 85 Fed. Reg. 55292 (Sept. 4, 2020)
• Supreme Court — Alabama Association of Realtors v. HHS (2021)
• CARES Act § 4024, P.L. 116-136 (Congress.gov)
• Home Building & Loan Association v. Blaisdell, 290 U.S. 398 (1934) — Justia
• National Conference of State Legislatures (NCSL) — COVID-19 Eviction Moratoriums
• HUD — American Housing Survey
• Princeton Eviction Lab
• Federal Housing Finance Agency (FHFA)
• 42 U.S.C. § 264 — Public Health Service Act (eCFR/Cornell LII)
• Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) — Justia