Putting a Moratorium on Moratoria: Avoiding an Unlawful Regulatory Taking While Preserving SafeRental Housing During a National Crisis

The Center for Disease Control’s eviction moratorium for nonpayment of rent during the COVID-19 pandemic alleviated immediate costs for affected tenants who were financially burdened during periods of economic shutdown—but at what cost? While this moratorium was invalidated by the United States Supreme Court in Alabama Association of Realtors v. Department of Health and Human Services for exceeding the power of an executive agency, the Court allowed for the possibility of this moratorium being lawful if it were passed by Congress. Within the dicta of the brief opinion is language praising the hallowed property right to exclude followed by a footnote to Loretto v. Teleprompter Manhattan CATV Corp.—the leading case on physical invasion regulatory takings. What seems to be harmless dicta at first glance could potentially lead to explosive legal question: if a future moratorium on evictions for nonpayment of rent was enacted by Congress, could a regulatory taking result?
This Article explores the eviction moratorium and its resulting litigation, breaks down the meaning and jurisprudence of federal regulatory takings, and analyzes the eviction moratorium under the different theories of regulatory takings. Based on the Supreme Court’s recent decision in Cedar Point Nursery v. Hassid, this Article finds that a future eviction moratorium similar to the CDC’s would be found unconstitutional for violating the Fifth Amendment under a physical invasion theory of regulatory takings—a per se rule requiring no balancing test by a court. Finally, this Article concludes by suggesting alternative crisis rental housing programs that balance the equities of relevant parties without amounting to a regulatory taking.