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Supreme Court Strikes Down Latest Eviction Moratorium

Ruth Singleton
Published Date:
Aug 27, 2021

iStock-922171778 SCOTUS United States US Supreme Court

The U.S. Supreme Court issued a decision Thursday night striking down an executive order that extended the Center for Disease Control and Prevention (CDC)’s eviction moratorium through Oct. 3. President Joe Biden issued that executive order on Aug. 3. The high court issued an eight-page unsigned majority opinion that ruled that the CDC exceeded its authority because Congress had not enacted any authorizing legislation. The New York Times observed that an opinion of that length was unusual for the court when granting emergency relief, because terse orders are more the rule.  

“It would be one thing if Congress had specifically authorized the action that the CDC has taken,” the court majority wrote. “But that has not  happened. Instead, the CDC has imposed a nationwide moratorium on evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination. It strains credulity to believe that this statute grants the CDC the sweeping authority  that it asserts.”   

The challenge to the extended moratorium was brought by the Alabama Association of Realtors and other real estate entities. The high court found that the moratorium put the plaintiffs at the risk of irreparable harm because there was no guaranty that landlords would recover past rent payments. “Despite the CDC’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means,” the majority wrote. 

Justice Stephen Breyer, joined by justices Sonia Sotomayor and Elena Kagan, dissented, saying that “it is far from “demonstrably” clear that the CDC lacks the power to issue its modified moratorium order.” He noted that “[t]he CDC’s current order is substantially more tailored than its  prior eviction moratorium, which automatically applied nationwide. Justified by the Delta-variant surge, the modified  order targets only those regions currently experiencing sky-rocketing rates.” 

Justice Breyer also observed that the CDC issued this latest moratorium order “pursuant to its powers under §361(a) of the Public Health Service Act. That provision ‘authorize[s]’ the CDC: ‘[T]o make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases [inter-state].’” Justice Breyer said that the statute’s “first sentence grants the CDC authority to design measures that, in the agency’s judgment, are essential to contain disease outbreaks. The provision’s plain meaning includes eviction moratoria necessary to stop the spread of diseases like COVID–19.” 

Justice Breyer also said that the balance of equities favors keeping the moratorium in place because Congress has appropriated more than $46.5 billion to help pay rent and rental arrears. While he acknowledged that it may take time for landlords to get that money, he said that that injury pales against the harm from vacating the stay at a time when COVID-19 transmission rates have spiked to 150,000 new cases a day. Further, he said that the “public interest is not favored by the spread of  disease or a court’s second-guessing of the CDC’s judgment. The CDC has determined that ‘[a] surge in evictions could  lead to the immediate and significant movement of large  numbers of persons from lower density to higher density  housing. . . when the highly transmissible Delta variant is driving COVID–19 cases at an unprecedented rate.’”  

Justice Breyer concluded by finding that the criteria for granting the emergency application were not met: “Applicants raise contested legal questions about an important federal statute on which the lower courts are split and on which this Court has never actually spoken. These questions call for considered decision-making, informed by full briefing and argument. Their answers impact the  health of millions.”

In reaction to the court’s ruling, the Biden administration predicted that it would result in a wave of severe consequences, the Times reported. 

“As a result of this ruling, families will face the painful impact of evictions, and communities across the country will face greater risk of exposure to Covid-19,” Jen Psaki, the White House press secretary, said in a statement. 

The court’s decision also renewed pressure on congressional Democrats to try to extend the moratorium, despite the objection of Republicans. Rep. Cori Bush (D-Mo.) who slept on the steps of the Capitol earlier this month to protest the expiration of the previous moratorium, said, “Tonight, the Supreme Court failed to protect the 11 million households across our country from violent eviction in the middle of a deadly global pandemic.” 

Bob Pinnegar, the president of the National Apartment Association, a trade association representing large landlords, praised the ruling, saying, “The government must move past failed policies and begin to seriously address the nation’s debt tsunami, which is crippling both renters and housing providers alike.”

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