The Supreme Court on Tuesday denied a request by a group of Alabama real estate agents to block a federal moratorium on evictions that was imposed because of the COVID-19 pandemic. Justice Brett Kavanaugh provided the key vote to leave the moratorium in place, joining Chief Justice John Roberts and the court’s three liberal justices. Kavanaugh wrote that, although he agrees with the real estate agents that the Centers for Disease Control and Prevention exceeded its authority when it issued the ban, he nonetheless voted to leave the ban in place because it is scheduled to expire soon.
Tuesday’s ruling was the latest chapter in the dispute over the moratorium, which the CDC imposed in September after a similar moratorium enacted by Congress expired. In May, U.S. District Judge Dabney Friedrich ruled that the moratorium went beyond the power that Congress had given the CDC. But she put her ruling on hold while the government appealed to the U.S. Court of Appeals for the District of Columbia Circuit, which on June 2 issued a decision that left Friedrich’s stay in place.
The real estate agents went to the Supreme Court on June 3, arguing that “Congress never gave the CDC the staggering amount of power it now claims.” Landlords, they told the justices, have been losing over $13 billion in unpaid rent each month as a result of the moratorium. They sought an emergency ruling from the justices lifting the stay and allowing Friedrich’s ruling to take effect.
Representing the federal government, Acting U.S. Solicitor General Elizabeth Prelogar urged the justices to leave the moratorium in place. The challengers, she argued, had not made the kind of “extraordinary showing” needed to overcome the deference that should be shown to the lower courts’ stay and the CDC’s response to the pandemic. Among other things, Prelogar wrote, the record in the case did not indicate that the challengers would be permanently harmed if the moratorium were left in place. The moratorium applies only to a small group of tenants, who are still required to try to pay their rent. Moreover, Prelogar added, Congress has made nearly $50 billion in assistance available to landlords to defray the costs of the moratorium.
The moratorium had been scheduled to expire at the end of June, but last Thursday, the CDC extended it through July. In a letter to the court on the same day, Prelogar told the justices that the government had no plans to extend it any further.
With a brief, unsigned order on Tuesday night, the court turned down the real estate agents’ request. Four of the court’s conservative justices – Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett – indicated that they would have granted the request and put the moratorium on hold. Although the justices do not always reveal their votes on requests for emergency relief, the real estate agents would have prevailed if a fifth justice had voted in their favor, which means that the remaining justices – Roberts, Kavanaugh and Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan – all voted against relief.
Kavanaugh wrote a short concurring opinion in which he explained his vote. He noted that although he agreed that the real estate agents were correct, the moratorium is scheduled to end ”in only a few weeks,” and keeping it in place until then “will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds” by the Department of the Treasury. However, Kavanaugh cautioned, he believes that “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”
This post is also published on SCOTUSblog.