Just under two months after a divided court allowed an earlier moratorium to remain in place, the Supreme Court on Thursday night blocked the Biden administration from enforcing the latest federal moratorium on evictions, imposed because of the COVID-19 pandemic. The justices divided along ideological lines, with the court’s three liberal justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – dissenting from the unsigned eight-page decision. The ruling was the second defeat for the Biden administration on the so-called “shadow docket” in three days, following the court’s refusal on Tuesday night to block a lower court’s order requiring the Biden administration to reinstate the Trump-era “remain in Mexico” policy.
The decision on the eviction moratorium was a decisive rebuke for the Biden administration, with the majority writing that it “strains credulity to believe” that the public-health law at the center of the case gives the Centers for Disease Control the power to enact the moratorium. “If a federally imposed eviction moratorium is to continue,” the court stressed, “Congress must specifically authorize it.”
When the justices were asked to intervene at the end of June, they were considering whether to lift a ban on evictions that applied to all rental properties in the United States. The CDC had extended the moratorium through July 2021.
A group of Alabama real estate agents and landlords went to federal court in Washington, D.C., to challenge the moratorium. They argued that the CDC lacked the authority to impose the moratorium, which they say is costing landlords billions of dollars in unpaid rent each month.
A divided Supreme Court rejected the challengers’ plea to lift the earlier iteration of the ban on evictions. Justice Brett Kavanaugh provided the key vote to keep the moratorium in place. Although he agreed with the challengers that the CDC lacked the power to issue the moratorium, he joined Chief Justice John Roberts and the court’s three liberal justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – in voting to leave the ban in effect, explaining that it was scheduled to expire at the end of July.
The White House initially indicated that the CDC would not extend the moratorium when it expired. But when Congress failed to do so, the CDC issued a new version of the moratorium that applied to most, though not all, of the country and was slated to last until Oct. 3.
The real estate agents and landlords returned to court to challenge the new version of the moratorium. U.S. District Judge Dabney Friedrich, who had previously agreed with them that the CDC does not have the authority to issue the ban, reasoned that because the new version was “virtually identical” to the version covered by her earlier ruling, her “hands are tied” by an appeals court decision putting that order on hold.
The challengers then went to the U.S. Court of Appeals for the District of Columbia Circuit, which left the new version of the moratorium in place in a brief order last week.
The challengers came to the Supreme Court on Friday, where they once again argued that “Congress never gave the CDC the staggering amount of power it now claims.” Indeed, the challengers contended, the Biden administration itself initially acknowledged the lack of legal authority for the ban before extending it.
In its filing on Monday, the Biden administration stressed that the new version of the eviction ban was “more targeted” than the earlier versions: It applies only to counties with high levels of community transmission. But, Acting Solicitor General Brian Fletcher stressed, the new version relied on the same statutory authority as prior versions – a federal law that gives the CDC the power to issue regulations to stop the spread of infectious diseases. In this case, Fletcher wrote, the CDC determined that a large number of evicted renters could add to the spread of COVID-19 if they moved in with friends and family or became homeless.
Fletcher characterized statements by the president and others in the White House as merely an “acknowledgement that, at least as things stood on June 29, it appeared likely that five Justices would have voted to vacate the stay if the original moratorium had been extended past July 31.” And although the CDC indicated that it planned to end the ban unless there was “an unexpected change in the trajectory of the pandemic,” Fletcher wrote, that is precisely what happened as a result of the highly contagious delta variant – “dramatically and for the worse.” Hospitalization rates in some places “are approaching, if not surpassing, their winter peaks,” Fletcher added.
In a brief opinion released shortly before 9:30 p.m. on Thursday night, the court acknowledged the public’s “strong” interest in fighting the spread of COVID-19 and in particular the delta variant. But that was not enough to leave the ban on evictions in place. The challengers, the court explained, are “virtually certain to succeed on the merits of their argument that the CDC has exceeded its authority” – a key factor for the kind of emergency relief the challengers were seeking – because the CDC had relied on a “decades-old statute” that gave the agency the power to stop the spread of disease by taking actions like fumigation and extermination. The government’s interpretation, the court continued, would “give the CDC a breathtaking amount of authority” – so much so, the court suggested, that it is “hard to see what measures this interpretation would place outside the CDC’s reach.”
The court noted that, since the earlier proceedings in the case, the government has had additional time to distribute funds to try to help tenants affected by the pandemic. Congress has also, the court observed, been on notice that it would need to take action if the moratorium was going to be extended, but it failed to do so. Emphasizing that “our system does not permit agencies to act unlawfully even in pursuit of desirable ends,” the court concluded that it is now “up to Congress, not the CDC, to decide whether” to extend the moratorium.
In his dissent, joined by both Sotomayor and Kagan, Breyer highlighted the difference between the current circumstances of the pandemic and the situation when the challengers asked the court to lift the eviction ban in late June. Over 90% of U.S. counties are now experiencing high levels of COVID-19 transmission, he pointed out, compared with levels in single digits in late June.
Breyer was also less persuaded that the CDC obviously lacked the power to issue the moratorium. He stressed that the lower courts have divided on that question – making it, he wrote, “at least hard to say that the Government’s reading of the statute is ‘demonstrably wrong.’”
More broadly, Breyer objected to his colleagues’ decision to lift the eviction ban through the emergency appeals process. In his view, the questions presented in the case “call for considered decisionmaking, informed by full briefing and argument. Their answers impact the health of millions. We should not set aside the CDC’s eviction moratorium in this summary proceeding,” Breyer concluded.
This post is also published on SCOTUSblog.