Governor Extends Vaccine Eligibility as CDC Extends Eviction Moratorium

March 30, 2021 at 9:55 am 2 comments

In case you haven’t already heard, Governor Cuomo announced yesterday that starting today individuals 30 years and older can schedule vaccinations and individuals 16 years and older can start scheduling appointments on April 6th.

Is the CDC Guilty of Regulatory Overreach?

The Governor’s announcement came the same day that the Center for Disease Control announced that it would be extending a moratorium on evictions.  Aside from its practical significance, the CDC’s aggressive use of its regulatory authority may provide a vehicle for federal courts to further chip away at the judicial deference that has been afforded to agency determinations over the last 30 years.  As readers of this blog know, as the most heavily regulated financial institutions in the country, credit unions have a keen interest in any litigation dealing with the extent to which agencies can regulate in the absence of explicit congressional authority.

If you’re wondering why the CDC has the authority to block evictions in the first place, you are not alone.  Yesterday the United States Court of Appeals for the Sixth Circuit refused to issue a stay of a lower court ruling that ruled the CDC had exceeded its authority when it extended the eviction moratorium without Congressional authorization (Tiger Lily, LLC v United States Dept. of Hous. and Urban Dev., 21-5256, 2021 WL 1165170, at *3 [6th Cir Mar. 29, 2021]).  The ruling sets the stage for further litigation which may impact the status of evictions nationwide and could produce important rulings on how much authority agencies have to interpret federal laws.  Remember, that no matter what the court decides, states such as New York have the authority to issue eviction and foreclosure moratoriums and have done so.   

For those of you scoring at home (that’s a baseball reference since opening day is just two days away), in March of 2020 the CARES Act imposed an eviction moratorium that expired on July 25, 2020.  The CDC director extended this moratorium through December of last year.  Congress extended the moratorium until January 31st and when this authority expired, the CDC director extended the moratorium until March 31st and further extended it yesterday.  In exercising this authority, in the absence of congressional authorization, the director is relying on 42 USC § 264 which authorizes the CDC, acting through the Surgeon General to make and enforce regulations that “in his judgement are necessary to prevent the introduction, transmission or spread of communicable diseases.”  The logic of the CDC is that, in the absence of a nationwide eviction moratorium an increase in homelessness and crowded living arrangements will contribute to the spread of the disease. 

In refusing to uphold the CDC’s previous order, the Sixth Circuit explained that “…we cannot read the Public Health Service Act to grant the CDC the power to insert itself into the landlord-tenant relationship without some clear, unequivocal textual evidence of Congress’s intent to do so. Regulation of the landlord-tenant relationship is historically the province of the states.”

NACHA Releases List of Top ODFIs

Just in time for this morning’s blog, Nacha has issued this press release detailing the most active financial institutions when it comes to ACH transactions over the past year.  This year’s statistics are more intriguing than usual because they provide a snapshot of how the pandemic has accelerated the trend towards electronic payment options.  According to Nacha the top 50 originating financial institutions processed more than $23B in payments last year, an 8.4% increase and the top 50 receiving institutions witnessed an 11% increase.  What I find intriguing about these numbers is how the ACH network continues to be dominated by a relative handful of financial institutions even as the Nacha network becomes more ubiquitous. 

Entry filed under: COVID-19, Legal Watch, Regulatory, technology. Tags: , , , , , , .

How is Your CU’s Diversity Initiative Coming Along? Are You Ready for the COVID Regulatory Wave?

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Authored By:

Henry Meier, Esq., Senior Vice President, General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association. In addition, although Henry strives to give his readers useful and accurate information on a broad range of subjects, many of which involve legal disputes, his views are not a substitute for legal advise from retained counsel.

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