CDC’s eviction moratorium upended by the Supreme Court

The Supreme Court issued a new opinion on Aug. 26, 2021 which will perhaps be an end to the ongoing dispute over the legality of the Centers for Disease Control and Prevention’s (CDC) eviction moratorium. A deeper dive into the terms of the moratorium and an analysis of the procedural posture as of the most recent renewal of the moratorium can be found here, but a bit of context is provided as a jumping off point in this article.

The CDC issued a renewal of the moratorium in this past spring to expire at the end of July, which effectively prohibited evictions for nonpayment of rent. The CDC noted that it intended that renewal to be the final moratorium period.

The Supreme Court heard a challenge to the constitutionality of the moratorium, and in June ruled 5–4 to maintain the moratorium. Interestingly, Justice Kavanaugh wrote a concurring opinion noting that he “agree[d] … that the [CDC] exceeded its existing statutory authority by issuing a nationwide eviction moratorium” but he voted to continue to allow the moratorium to proceed “on the balance of equities” because the moratorium was due to expire in a short amount of time and the public had an interest in allowing increased distribution of emergency rental aid.

The CDC issued a subsequent moratorium on Aug. 3. The Supreme Court’s new opinion is based on a challenge to this most recent moratorium. The case originated in federal trial court in Washington, D.C. The trial court vacated the moratorium but issued a stay of its judgment while the government appealed.

The Supreme Court, in the Aug. 26 ruling, technically was only ruling on whether to maintain the trial court’s stay as opposed to the trial court’s underlying decision vacating the moratorium. However, an analysis of whether to maintain a stay involves addressing the merits of the underlying case, and whether the party seeking relief would be successful on those merits, and the Supreme Court’s opinion certainly sets forth ample reason to believe it would agree with the trial court’s underlying decision, if/when the Court ultimately considers it.

Specifically, the Supreme Court noted, in a per curiam opinion, that the CDC exceeded its authority in issuing the moratorium. The CDC’s claimed authority appears to stem from a section of the Public Health Service Act, specifically, 42 USC § 264(a), which 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 extermination, 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.”

The Court’s opinion notes that the second sentence “informs the grant of authority by illustrating the kinds of measures that could be necessary: inspection, fumigation, disinfection …” The Court noted that these acts are designed to identify, isolate, and destroy a disease, whereas the moratorium has less of a direct relation to COVID-19 and preventing its spread. Further, the Court noted that the landlord/tenant relationship is typically the purview of state law, and that if Congress wants to impose on what is typically a state law concern, it must “enact exceedingly clear language” doing so, and  §264(a) does not explicitly confer such authority to the CDC.

In weighing the factors necessary when deciding whether to maintain the trial court’s stay, the Supreme Court ruled in favor of landlords and vacated the stay. While, again, their ruling was just for that individual stay and not the moratorium “at large,” it is easy to see how the basis for their ruling applies to the moratorium at whole and would apply to any other challenges of the moratorium, should there be any.

As such, the CDC’s moratorium is effectively invalidated, as of this moment. The Supreme Court concluded by stating, “If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.”

Jessica M. Kramer is a partner at Kramer, Elkins & Watt LLC (KEW) in Madison and writes about employment law for IB’s Law at Work column. Joe Andreoni is an associate attorney at KEW and a former state prosecutor.

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