A group of Alabama real-estate agents and landlords returned to the Supreme Court on Friday, asking the justices to block the Biden administration’s latest ban on evictions during the COVID-19 pandemic. The request came just under two months after the justices, in a 5-4 vote, declined to lift an earlier iteration of the eviction moratorium. Justice Brett Kavanaugh provided the key vote in late June to keep the earlier version of the ban in place, explaining that although he agreed with the challengers that the Centers for Disease Control and Prevention had exceeded its authority when it issued the ban, he voted not to strike it down because the ban was scheduled to expire at the end of July.
As originally enacted by Congress in early 2020, the ban on evictions applied to all rental properties receiving federal assistance and was scheduled to last 120 days. When that moratorium expired, the Trump administration imposed a broader moratorium that applied to all rental properties in the United States. Congress initially extended that moratorium for 30 days; the CDC then extended it through July 2021.
The real estate agents and landlords went to federal court in Washington, D.C., arguing that the CDC lacked the power to issue the ban – which, they added, is costing landlords billions of dollars in unpaid rent each month. In early May, Judge Dabney Friedrich agreed, but she put her ruling on hold while the government appealed. The U.S. Court of Appeals for the District of Columbia Circuit issued a decision on June 2 that left Friedrich’s stay – and therefore the moratorium – in place.
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The challengers turned next to the Supreme Court, seeking an emergency ruling that would allow Friedrich’s decision to go into effect and, therefore, lift the moratorium. But with Kavanaugh joining Chief Justice John Roberts and the court’s three liberal justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – in voting against relief, the moratorium remained in place for its final month.
Shortly before the moratorium expired in late July, the White House indicated that the CDC would not further extend the moratorium. Instead, the White House called on Congress to act. But on Aug. 3, after Congress failed to do so, the CDC extended the moratorium for another two months. The new version of the moratorium applies to areas with high levels of COVID-19 community transmission – roughly 90% of U.S. counties.
The challengers returned to court, and on Aug. 13 Friedrich rejected their request to lift the new version of the moratorium. “It is true,” she wrote, “that the Supreme Court’s recent decision in this case strongly suggests that the CDC is unlikely to succeed on the merits” of its claims. However, she reasoned, because the new iteration of the moratorium was “virtually identical” to the version covered by her May order, her “hands are tied” by the D.C. Circuit’s decision putting her earlier order on hold.
In a brief order on Friday, the D.C. Circuit left the moratorium in place, rejecting the challengers’ request to block the eviction ban while litigation continues, setting the stage for the challengers’ return to the Supreme Court later in the day.
In their 40-page filing, the challengers reiterated the same argument that they made in June, noting that it has the apparent support of five members of the court: “Congress never gave the CDC the staggering amount of power it now claims.” Instead, the challengers observed, the CDC invoked as authority for the eviction ban “a rarely-used statute from 1944 whose domain has previously been limited to matters such as the sale of baby turtles.”
Indeed, the challengers stressed, the Biden administration extended the moratorium despite its acknowledgement of the lack of legal authority for the ban. The challengers instead attributed the administration’s actions to a desire to “mollify” members of Congress and “get as much rental assistance out the door as possible” before the ban is blocked.
The challengers’ request went initially to Roberts, who handles emergency appeals from the District of Columbia. Roberts moved quickly, instructing the Biden administration to file its response by noon on Monday, Aug. 23. Once the response and the challengers’ reply are in, Roberts can act on the request alone or, as is more likely in a high-profile case like this one, refer it to the full court.
This post is also published on SCOTUSblog.