US Supreme Court Strikes Down Federal Eviction Ban

In Alabama Association of Realtors v. Department of Health and Human Services, 594 U.S. ____ (2021), the U.S. Supreme Court struck down the federal government’s ban on evictions, which was scheduled to last until October 3, 2021. In an unsigned opinion, the divided Court held that the Centers for Disease Control and Prevention (CDC) exceeded its existing statutory authority by issuing a nationwide eviction moratorium. “If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it,” the Court wrote.

Facts of the Case

In March 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act to alleviate burdens caused by the COVID–19 pandemic. Among other relief programs, the Act imposed a 120-day eviction moratorium for properties that participated in federal assistance programs or were subject to federally backed loans.

When the eviction moratorium expired in July, Congress did not renew it. Concluding that further action was needed, the CDC imposed a moratorium that went further than its statutory predecessor, covering all residential properties nationwide and imposing criminal penalties on violators. The CDC’s moratorium was originally slated to expire on December 31, 2020. However, Congress extended it for one month as part of the second COVID–19 relief Act. As the new deadline approached, the CDC extended its moratorium through March, then again through June, and ultimately through July.

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. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest ex- termination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

Originally passed in 1944, this provision has rarely been invoked—and never before to justify an eviction moratorium. Regulations under this authority have generally been limited to quarantining infected individuals and prohibiting the import or sale of animals known to transmit disease.

Realtor associations and rental property managers in Alabama and Georgia sued to enjoin the CDC’s moratorium. The U.S. District Court for the District of Columbia granted the plaintiffs summary judgment, holding that the CDC lacked statutory authority to impose the moratorium. However, the court stayed its order pending appeal. In June, the Supreme Court declined to vacate the stay. Justice Brett Kavanaugh joined the majority, but explained in a concurring opinion that he agreed with the District Court that the CDC’s moratorium exceeded its statutory authority. However, because the CDC planned to end the moratorium in only a few weeks, and because that time would allow for additional and more orderly distribution of congressionally appropriated rental-assistance funds, he concluded that the balance of equities justified leaving the stay in place.

The moratorium expired on July 31, 2021. Three days later, the CDC reimposed it, and the plaintiffs returned to the District Court to seek vacatur of its stay. The District Court agreed with the plaintiffs that the stay was no longer warranted for two reasons. First, the Government was unlikely to succeed on the merits, given the four votes to vacate the stay in this Court and Justice Kavanaugh’s concurring opinion. Second, the equities had shifted in the plaintiffs’ favor: Vaccine and rental-assistance distribution had improved since the stay was entered, while the harm to landlords had continued to increase. Nonetheless, the court concluded that its hands were tied by the law of the case, in light of the D.C. Circuit’s earlier decision not to vacate the stay.

Supreme Court’s Decision

The Supreme Court vacated that stay, rendering the judgment enforceable. “The CDC has imposed a nationwide moratorium on evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination,” the Court wrote. “It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.”

In reaching its decision, the Court rejected the government’s argument that §361(a) gives the CDC broad authority to take whatever measures it deems necessary to control the spread of COVID–19, including issuing the moratorium. “This claim of expansive authority under §361(a) is unprecedented. Since that provision’s enactment in 1944, no regulation premised on it has even begun to approach the size or scope of the eviction moratorium,” the Court wrote. “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. Section 361(a) is a wafer-thin reed on which to rest such sweeping power.”

The Court next found that the equities did not justify depriving the applicants of the District Court’s judgment in their favor. The Court wrote:

The moratorium has put the applicants, along with millions of landlords across the country, at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery. Despite the CDC’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means. And preventing them from evicting

tenants who breach their leases intrudes on one of the most fundamental elements of property owner- ship—the right to exclude.

The Court also emphasized that Congress neglected to act when given the opportunity. “Congress was on notice that a further extension would almost surely require new legislation, yet it failed to act in the several weeks leading up to the moratorium’s expiration,” the court wrote.

Finally, while the Court acknowledged that CDC’s intentions may have been good, it emphasized that its actions were still unauthorized. “It is indisputable that the public has a strong interest in combating the spread of the Covid-19 Delta variant,” the Court wrote. “But our system does not permit agencies to act unlawfully even in pursuit of desirable ends. It is up to Congress, not the CDC, to decide whether the public interest merits further action here.”

Dissent

Justice Stephen Breyer authored a dissent, which was joined by Justices Sonia Sotomayor and Elena Kagan. In support of the eviction moratorium, Justice Breyer emphasized that a lot has changed since the Court’s decision in June, with pandemic no longer trending in the right direction. “COVID-19 transmission rates have spiked in recent weeks, reaching levels that the CDC puts as high as last winter: 150,000 new cases per day,” he wrote. “The public interest is not favored by the spread of disease or a court’s second-guessing of the CDC’s judgment.”

Justice Breyer also argued that the case should not have been resolved via the Court’s emergency docket. “These questions call for considered decisionmaking, informed by full briefing and argument,” he said. “Their answers impact the health of millions.”