US Supreme Court strikes down CDC moratorium on evictions
© WikiMedia (US Capitol)
US Supreme Court strikes down CDC moratorium on evictions

The US Supreme Court on Thursday held that the Centers for Disease Control and Prevention (CDC) exceeded its authority in issuing a moratorium order on evictions in counties with heightened levels of community transmission.

The CDC order issued earlier this month was the latest in a series of moratoriums that has been either newly issued or extended since March 2020, but only the first moratorium order and a December extension was directly issued by Congress. The CDC had repeatedly extended the moratorium deadline since February until it finally expired at the end of last month.

Specifically noting that it was about to expire at the end of July, the Supreme Court upheld the last moratorium extension in June, but concurring Justice Brett Kavanaugh warned that any further extensions by the CDC will not respected without “clear and specific congressional authorization.”

This latest moratorium order came soon after the expiry of the last extension under severe pressure from various organizations and amid criticism from Speaker of the House Nancy Pelosi who questioned the CDC’s reluctance in issuing a new order and stated that the “CDC has the power to extend the eviction moratorium.” Pelosi added that Congress was unable to accede to US President Joe Biden’s request to extend the moratorium because “it’s clear the Senate is not able to do so & any legislation in the House, therefore, won’t be sufficient to extend the moratorium.”

Unlike the previous moratoriums and related extensions, this latest moratorium was much more limited in scope and targeted specific areas of the country where COVID-19 cases are rapidly rising—a trend that likely would be exacerbated by mass evictions. Any county that was not experiencing substantial and high levels of community transmission for a 14-day period would have fallen out of coverage of the moratorium.

The latest CDC order was immediately challenged by the Alabama Association of Realtors and landlord groups from Alabama and Georgia (“the plaintiffs”). While agreeing that the CDC had extended its authority in issuing the new order, the US District Court for the District of Columbia dismissed the challenge stating that “the Court’s hands are tied” as Justice Kavanaugh’s “concurring opinion” was not controlling. After the US Court of Appeals for the DC circuit similarly dismissed the challenge, plaintiffs approached the Supreme Court. The Department of Justice had urged the Supreme Court on Tuesday to uphold the moratorium citing the rising number of COVID-19 cases in areas across the country and the need to not place people in situations of increased risk.

In a 6-3 decision, the Supreme Court essentially confirmed Justice Kavanaugh’s prior concurrence as controlling and stated that the CDC’s reliance on § 361(a) of the Public Health Service Act (“the Act”) is ill-fated:

the second sentence informs the grant of authority by illustrating the kinds of measures that could be necessary: inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles. These measures directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself…it is a stretch to maintain that §361(a) gives the CDC the authority to impose this eviction moratorium…We expect Congress to speak clearly when authorizing an agency to exercise powers of “vast ‘economic and political significance…’” the Government’s read of §361(a) would give the CDC a breathtaking amount of authority. It is hard to see what measures this interpretation would place outside the CDC’s reach…Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable? Require manufacturers to provide free computers to enable people to work from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work?…And it is further amplified by the CDC’s decision to impose criminal penalties of up to a $250,000 fine and one year in jail on those who violate the moratorium.

Acknowledging the public’s strong interest in combating the spread of COVID-19 Delta Variant, the Court also pointed to the “risk of irreparable harm” faced by landlords across the country who are deprived of rental income with no guarantee of eventual recovery and concluded that it “is up to Congress, not the CDC, to decide whether the public interest merits further action here.”

Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor dissented pointing to the limited scope of the latest moratorium order and criticizing the majority for striking down the order “as an emergency matter, without full briefing or argument…” The dissent scoffed at the majority’s concern for the “risk of irreparable harm” to landlords and stated that its concern should be more appropriately placed on those evicted and facing a significantly higher risk of contracting the Delta Variant in homeless shelters.