The Supreme Court, by a bare 5-4 vote, refused to block the nationwide eviction moratorium ordered by the Centers for Disease Control and Prevention. Whether CDC could extend the ban on ousting renters from their homes past July 31 is unlikely, though, considering that Justice Brett Kavanaugh said he would not again vote against a stay of the order without Congressional authorization.
The Alabama Association of Realtors mounted an array of statutory and constitutional arguments against the moratorium order. “Every day the stay remains in place, applicants’ property continues to (be) unlawfully occupied and their rental income continues to be unlawfully cut off,” the trade group wrote in its request to the justices. “Nine months of overreach is enough.” The realtors convinced a federal judge in Washington to issue a May 5 order holding that the CDC acted outside of its authority in extending the dispossession ban through the end of June and then through July.
U.S. District Judge Dabney Friedrich stayed her order to permit the Biden administration to appeal and, on June 2, the federal appeals court in Washington refused to vacate that stay, an order upheld by the Supreme Court Tuesday. The Alabama realtor trade group then asked the justices via the court’s shadow docket to lift Friedrich’s stay. The shadow docket is the portion of the Supreme Court’s caseload in which the court may not receive complete briefing or oral argument.
Chief Justice John Roberts and justices Steven Breyer, Elena Kagan, Sonia Sotomayor and Kavanaugh agreed to affirm Friedrich’s stay of her order invalidating the CDC eviction moratorium extension through June 30 and, by implication, through next month. Kavanaugh was the only member of the court to comment on the reasons for his vote, making clear he thinks CDC lacked authority to compel landlords to continue refraining from evictions through July. Kavanaugh’s comment also indicates he voted to uphold Friedrich’s stay order only because it would allow sufficient time for the “additional and more orderly distribution of the congressionally appropriated rental assistance funds.” “In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31,” he continued.
The remaining members of the court’s conservative block — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Barrett – dissented but did not provide any written statement of reasons.
Five lower federal courts, including the U.S. District Court for the District of Columbia, have held that CDC was not authorized to extend the eviction moratorium. One of those rulings was by the 6th U.S. Circuit Court of Appeals, while the two others were by federal district courts in Ohio and Tennessee. Federal judges in Georgia and Louisiana have upheld CDC’s effort to block evictions into the summer.
Congress first ordered the moratorium through the Coronavirus Aid, Relief, and Economic Security Act enacted in March 2020. After the 90-day statutory moratorium ordered by the CARES Act expired, CDC imposed an extension of it on Sept. 4, 2020. The agency, responding to an executive order by then-President Donald Trump, relied on an earlier federal public health law that authorized its director “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.” Congress then mandated a 30-day extension of that order via an appropriations bill enacted in December, while CDC then acted first to extend the eviction hold until June 30 and then again to do so until July 31.
A coalition of 22 states, including Colorado, and the District of Columbia asked the Supreme Court to allow the CDC eviction barricade to remain in place. “Conceived under the Trump Administration, ratified and extended by Congress, and continued by the Biden Administration, the CDC Order has been a powerful tool in containing the spread of COVID-19,” said Connecticut’s attorney general William Tong and Washington, DC Attorney General Karl Racine in an amicus curiae brief filed on the alliance’s behalf. “Recognizing that the ability to stay home and quarantine is an essential part of the pandemic response, the CDC Order—which temporarily prevents residential evictions for certain renters who otherwise would likely move into shared settings or become homeless—has been critical in helping states limit the spread of COVID-19.”
The states’ and the District of Columbia’s amicus brief voiced worry about the possible consequences of ending the eviction ban early. Doing so “could force millions of vulnerable individuals from their homes into the streets, crowded shelters, or into contact with family and friends within or across state lines,” Tong and Racine wrote.
Libertarian and conservative critics of the CDC’s decrees, on the other hand, invoked the spectre of excessive presidential power and delegation run amok in their condemnation. The nation’s chief executives, wrote law professor Ilya Somin of George Mason University’s Antonin Scalia Law School and a fellow at the Cato Institute in Sept. 2020, would have “limitless executive authority to impose restrictions and mandates” that “would make a hash of the separation of powers, enabling the president to circumvent Congress’s authority on a massive scale.” Somin also said that the language of the public health statute relied upon by CDC to justify the moratorium extension cannot be interpreted to support the ban without weakening any statutory restraint on administrative powers. “If Congress can delegate the power to suppress virtually any activity of any kind, so long as the CDC claims that doing so is reasonably necessary to reduce the spread of disease, it is hard to see how any meaningful limits on delegation would remain,” Somin said.
The eviction ban does not benefit all residential tenants. Criteria established by CDC includes requirements that renters have “used best efforts to obtain all available government assistance for rent or housing,” “expect to earn less than $99,000 ($198,000 for joint tax filers) in 2020 or did not have to report any income to the IRS in 2019, or received a stimulus check under CARES Act, are “unable to pay the full rent… due to substantial loss of household income… , a lay-off, or extraordinary out-of-pocket medical expenses,” are “using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit,” and that “eviction would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting.”
The case is Alabama Association of Realtors et al. v. Department of Health and Human Services, et al., No. 20a169.