U.S. Supreme Court’s Emphatic “Take That!” To CDC Eviction Moratorium

by: Anthony F. Della Pelle
27 Aug 2021

Yesterday, the US Supreme Court issued a per curiam opinion which finally (hopefully) ended the ping pong match that had been underway for many months concerning the validity of the federal eviction moratorium, which had been in place since the beginning of the COVID-19 pandemic.  The moratorium was first imposed by Congress in March 2020 as part of the “CARES” relief act which, inter alia, imposed a 120-day eviction moratorium on properties that involved federal assistance programs or federally-backed loans.  When that Congressional moratorium expired in July, 2020, the federal Centers for Disease Control (CDC) decided to do what Congress would not – it administratively imposed a new moratorium – without new legislation – and this new moratorium covered all residential properties nationwide and imposed criminal penalties on violators.  The new CDC moratorium was set to expire on December 31, 2020, but Congress extended it for one month as part of its second COVID-19 relief legislation.  Then the CDC took matters into its own hands, by administratively extending the deadline three more times, with the last deadline set to expire on July 31, 2021.  The stated basis by CDC for its administrative actions was federal legislation and regulations from the 1940s which had historically been used to quarantine infected individuals and limiting the importing or sale of animals known to transmit infectious diseases.  Specifically, Section 361(a) of the federal Public Health Service Act provides the Surgeon General (not the CDC) the right to provide for “inspection, fumigation, disinfection, sanitation, pest extermination, destruction fo animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings”.  Never before had this authority been used to justify an eviction moratorium.

Like other restrictions upon individual rights and liberties imposed by various government agencies during the pandemic, the eviction moratorium was the subject of various legal challenges, many of which were unsuccessful, and the moratorium was the subject of considerable debate around the country. We examined some of those lawsuits and debates in our September 2020 blog post:

COVID-19 Eviction Freezes — Who is Supposed to Pay?

Months later, we questioned whether the COVID-19 pandemic, which still rages throughout our country and much of the world even today, was still a public health “emergency” and, as a result, whether the “emergency” actions undertaken by the government – nearly all of which were upheld by reviewing courts due to the “emergency” — were still authorized, or whether the proper function of our government should shift its focus from emergency executive orders and actions to legislative relief, as the legislature is supposed to make laws, not government executives or administrators:

Nearly a Year Later, is COVID-19 Still a Public Health Emergency?

This topic was also the subject of an interview The Eminent Domain Podcast, hosted by our colleague, Clint Schumacher:

The Current Status of COVID-Related Takings Litigation with Anthony DellaPelle

And last month, we discussed the interrelationship between the CDC moratorium and the separate eviction moratorium in our home state of New Jersey, where nearly 200,000 eviction proceedings are reported to be waiting in line to proceed, just like cars waiting to get through a toll on the Garden State Parkway or at the Hudson River crossings into New York City:

When Will the New Jersey Eviction Moratorium End?

It had seemed like the moratorium might continue for even longer periods, just as much of the country was experiencing increased COVID-19 infections due to new variants of the virus being transmitted and an apparent plateau may have been reached in vaccinations for Americans.  But yesterday, the Supreme Court’s decision in Alabama Association of Realtors v. Department of Health and Human Services may have finally started a recognition around the country that these moratoria, and perhaps other restrictions related to the pandemic, will face increasing scrutiny and limitations around the country.

The Alabama Realtors’ case had been the subject of a U.S. District Court opinion in May 2021, where the District Court held that the CDC lacked statutory authority to unilaterally impose the moratorium, but that court stayed its order pending appeal because of the “serious legal question” on the merits.  The U.S. Court of Appeals then agreed to vacate the stay, as did the U.S. Supreme Court, which held earlier this summer that, while the CDC lacked statutory authority, the moratorium was then planned to end in a “few weeks”, so continuing the stay for a short time would allow more time to administer the winddown of the programs in place in an orderly fashion.  But, after the CDC moratorium expired on July 31, 2021, three days later the CDC reimposed it again.  Within weeks, the cause found its way back to the High Court, which issued its opinion yesterday.  In its opinion, the Court reasoned that the Government’s interpretation of Section 361(a) of the federal Public Health Service Act would give the CDC a “breathtaking amount of authority” with virtually “no limit”, and would be an “unprecedented” claim of expansive authority, found to therefore be a “wafer-thin redd on which to rest such sweeping power”.  Then, in a significant signaling manner, the Court found its way into takings jurisprudence, by holding as follows:

“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 ownership – the right to exclude.  See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982).”  [Alabama Realtors, Slip Op. at 7]

This decision was widely anticipated by many in our field.  See, for example, these recent articles:

Our colleague, Robert Thomas:  SCOTUS Strikes Down Eviction Moratorium And Leaves Tantalizing Clues About Takings

Law Professor Ilya Somin:  Supreme Court Rules Against the Revised Eviction Moratorium

The Associated Press:  Supreme Court Allows Evictions to Resume During Pandemic

Yesterday’s news should not be viewed as being contrary to the public good or even to public health, or as some indication or affirmation that our Supreme Court has become politicized.  Instead, we urge our readers to view it from the context of the basic constitutional legal premise for which it stands.  Our Constitution created three branches of government.  The legislative branch of government is supposed to make the laws that govern our people.  In times of emergencies, the separation of powers does NOT change – legislatures still make laws, executives carry out laws and judges interpret laws.  Yet, despite this strong and intentionally divided system, during times of emergencies, executives in government – many or most of whom may be acting in good faith – undertake actions that can be viewed as improper or exceeding their powers.  To determine if an executive order or administrative action is constitutionally valid, there must be legislatively enacted law that authorizes such action. If not, then judges are supposed to invalidate those actions.  And that is exactly what happened here – the judges of the U.S. Supreme Court concluded that the actions of the CDC (part of the executive branch of government) exceeded the authority given to that agency by Congress (the lawmakers).  The final words of the Alabama Realtors’ Court’s decision make this clear:  “If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.”  [Slip op. at 8.]

Hopefully, this means that the eviction ping pong match is over, but it can also mean that Congress may take up this invitation and revisit the issue soon.  Stay tuned.