On Thursday, the Supreme Court blocked the Biden administration from enforcing the latest version of the eviction moratorium ordered by the Centers for Disease Control.
The Court wrote:
The Director of the Centers for Disease Control and Prevention (CDC) has imposed a nationwide moratorium on evictions of any tenants who live in a county that is experi- encing substantial or high levels of COVID–19 transmission and who make certain declarations of financial need. The Alabama Association of Realtors (along with other plaintiffs) obtained a judgment from the U. S. District Court for the District of Columbia vacating the moratorium on the ground that it is unlawful. But the District Court stayed its judgment while the Government pursued an appeal. We vacate that stay, rendering the judgment enforceable.
The United States District Court for the District of Columbia explained the background of the case as follows:
As part of the Coronavirus Aid, Relief, and Economic Security Act in 2020, Congress enacted a 120-day eviction moratorium that applied to all rental properties receiving federal assistance. When that moratorium expired, the U.S. Department of Health and Human Services (HHS), through the Centers for Disease Control and Prevention (CDC), imposed a broader eviction moratorium that applied to all rental properties in the United States. In December 2020, Congress granted a 30-day extension of that moratorium. The CDC then further extended it, first in January 2021 and then in March 2021.
The United States District Court for the District of Columbia vacated the CDC’s eviction moratorium on May 5, 2021. One week later, the Court issued a stay of vacatur pending appeal. On June 2, 2021, the D.C. Circuit declined to vacate the stay in an unpublished, per curiam judgment. On June 24, 2021, after the plaintiffs asked the Supreme Court to vacate the stay, the CDC extended the eviction moratorium for the third time.
The plaintiffs asked the Supreme Court to intervene, arguing that the CDC had no authority to impose the moratorium. Justice Brett Kavanaugh and Chief Justice John Roberts joined Stephen Breyer, Sonia Sotomayor, and Elena Kagan to leave the moratorium in place, although he stated he did so because it would expire at the end of July. “On June 29, 2021, the Supreme Court denied the plaintiffs’ application to vacate the stay, based in part on the CDC’s representation that it would not further extend the moratorium,” The United States District Court for the District of Columbia noted.
Then the Biden administration repeatedly stated that it would not further extend the eviction moratorium in light of the Supreme Court’s ruling, which it interpreted to “mak[e] clear” the option “is no longer available,” in the words of White House Press Secretary Jen Psaki on July 29. The Biden Administration stated that the CDC agreed, remarking, “the CDC Director and her team have been unable to find legal authority, even for a more targeted eviction moratorium that would focus [just] on counties with higher rates of COVID spread.”
But on August 3, 2021, the CDC renewed a moratorium on evictions in the United States.
The Supreme Court noted the Biden administration’s reliance on an old statute to make its case:
The CDC relied on §361(a) of the Public Health Service Act for authority to promulgate and extend the eviction moratorium. That provision states: “The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized 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.”
In its decision on Thursday, the Supreme Court wrote:
Even if the text were ambiguous, the sheer scope of the CDC’s claimed authority under §361(a) would counsel against the Government’s interpretation. We expect Congress to speak clearly when authorizing an agency to exercise powers of “vast ‘economic and political significance.’” That is exactly the kind of power that the CDC claims here. At least 80% of the country, including between 6 and 17 million tenants at risk of eviction, falls within the moratorium. While the parties dispute the financial burden on landlords, Congress has provided nearly $50 billion in emergency rental assistance—a reasonable proxy of the moratorium’s economic impact. And the issues at stake are not merely financial. The moratorium intrudes into an area that is the particular domain of state law: the landlord-tenant relationship.
Most importantly, the Court warned of the danger of the CDC assuming too much power: “Indeed, 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, and the Government has identified no limit in §361(a) beyond the requirement that the CDC deems a measure ‘necessary.’ 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? This claim of expansive authority under §361(a) is unprecedented.”
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