The Centers for Disease Control and Prevention (CDC) states that it “works 24/7 to protect America from health, safety, and security threats, both foreign and in the US.” But as with other government agencies with ambitious missions, it’s not always clear whether its legitimate ends justify its choice of means. This came into stark relief last week in Alabama Association of Realtors v. HHS, in which District Court Judge Dabney Friedrich held that the CDC exceeded its statutory authority by ordering a nationwide moratorium against all evictions from residential rental properties. The Justice Department promptly announced that it would appeal her decision because “scientific evidence shows that evictions exacerbate the spread of COVID-19 . . . and the harm to the public that would result from unchecked evictions cannot be undone.”

The saga began in March 2020, when Congress passed the CARES Act at the start of the COVID pandemic. That act included a 120-day ban on evictions for the nonpayment of rent by tenants who lived in federally subsidized housing. When that prohibition expired, the CDC, acting on its own authority, extended its new “halt order” through December 31, 2020, expanding coverage to those not housed in federally financed properties. These parties were protected so long as they met at least one of several generous tests, including an anticipated income of less than $99,000, a decline in income, or a substantial loss of household income or wages and salaries. Criminal penalties for violation of the halt order could reach $100,000 if the eviction didn’t result in death, and $250,000 if it did.

The moratorium did not release tenants from obligations under the lease, but instead allowed landlords to recoup their losses, but only after the moratorium expired by “charging or collecting of fees, penalties, or interest” for nonpayment of rent. When that second moratorium expired, Congress promptly extended it for another month, until January 31, on the same terms. It wasn’t until its next expiration on February 1 that the CDC again relied on its own statutory authority to extend the moratorium further.