Why SCOTUS Ended the Eviction Moratorium

It has been a rough couple of years for a lot of people, and that’s understating it. Because of the pandemic, many have found themselves struggling financially, with temporarily or permanently shuttered business resulting in significant income loss. When the eviction moratorium was announced last year, renters breathed a sigh of relief. Now it’s over, though the pandemic is not.

Housing is the single largest expense most people have every month. The alleviation of that burden was surely a godsend for many. This week, the Supreme Court released an opinion rendering the moratorium, as ordered by the Center for Disease Control, null and void.

A quick history of the moratorium: It began with the Coronavirus Aid, Relief and Economic Security Act (CARES Act) passed by Congress in March 2020. The Act provided for a 120-day moratorium. It expired in July 2020, and Congress took no action to extend it. In stepped the CDC, who issued an order to extend the moratorium. The CDC’s order was more expansive than its predecessor, and attached criminal penalties to violators. The Order was to expire on December 31, 2020, but Congress at that point extended the CDC’s order another month as part of the second pandemic relief bill. That was the last action taken by Congress; the CDC issued three further extensions: one through March, and another through June, and then through July.

Some folks have scratched their heads wondering how the CDC could order such a thing. What does disease control have to do with landlord/tenant matters? How is it in their purview? And that is exactly the question the Court had to consider.

The CDC’s order was challenged, in this case by the Alabama Association of Realtors. The plaintiffs asked the US District Court in DC for an injunction to halt the moratorium, and won. But the Court stayed its order while the government appealed. In considering whether to grant a stay, the Court considers 4 factors: 1)whether the appealing party has a substantial likelihood of prevailing; 2) whether the appealing party will be irreparably damaged if the judgment is not stayed pending appeal; 3)whether issuing the stay will substantially injure the party against whom the appeal is filed; and 4)public interest.

The DC District Court determined that the government did not have a substantial likelihood of winning their appeal; however, the Court did feel that there was at least a “serious legal question”. Further, the Court felt the other 3 factors weighed in the government’s favor. The Circuit Court agreed with the District Court, upholding the stay. The next stop was the Supreme Court, who also allowed the stay to remain in place. This was back in June. In a concurrence with the Court’s Order, Justice Kavanaugh explained his own reasoning. He agreed with the District Court’s holding that the CDC had exceeded its authority, but because the CDC’s order was set to expire in just a few weeks, “the balance of equities” favored leaving the stay in place. Justice Kavanaugh opined that perhaps Congress would take some action in the intervening time period.

He was wrong, though; Congress still did nothing. So, when the CDC’s order expired in June, they simply extended it again. At the time, President Biden admitted that the CDC would probably lose a challenge to its order, but proceeded anyway in order to provide relief to struggling renters for as long as possible. Commendable intentions, from the perspective of many, but an example of doing the wrong thing for the right reasons.

So, the stay ended up back before the Court, who did as expected this week and held in a per curium opinion that the CDC clearly did not have the authority to issue the moratorium.

So why did they think they did?

Because of the bolded part of this:

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 above is from the Public Health Service Act, the powers of which were delegated to the CDC by federal regulation. The government argued that the bolded sentence bestowed broad authority on the CDC to act is it saw fit to combat the spread of disease. The rationale was that when people are evicted, they move, sometimes to other areas and potentially across state lines. The moratorium would keep them in one place and thus fit within the authority granted by the Act. The government argued that the second section merely gives examples but is not an exhaustive list, as evidenced by “and other measures, as in his judgment may be necessary.”

The Court’s per curiam opinion calls this interpretation a stretch. The eviction moratorium is, in the Court’s view, markedly different from the way the Act has been used previously (an example: the prohibition on the sale of turtles of a certain size, which carry salmonella.) Additionally, the Court explained, an action of this type, which has “vast economic and political significance,” requires a clear pronouncement from Congress.

The Court goes on to say that 80% of the country is affected by the moratorium, including up to 17 million tenants who face potential eviction. In addition, the federal government has given out $50 billion, with a b, in rental assistance, making the consequences of the moratorium economically significant. The Court also took issue with the interference in the landlord/tenant relationship, an area it feels is within the domain of the state.

The Court goes on to say that under the interpretation put forth by the government, just about anything could be made to fit under the CDC’s authority:

Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable? Require manufacturers to provide free computers to enable people to work
from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work?

After all, such measures would keep people from needing to leave their homes and thus theoretically curb the spread of disease. No doubt some look at these supposedly worst-case scenarios and think, sure. Sounds good. But clearly, the SCOTUS majority considers these examples an absurd broadening of authority.

Next, the Court takes some time to defend the plight of the landlords, pointing out that as time goes on the balance of harm has accrued more heavily on their side.

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.

The Court concludes by throwing the burden back to Congress to take action – or not – and invalidating the eviction moratorium unless and until it does so.

The Court’s liberals teamed up in dissent, written by Justice Breyer. First, Breyer takes issue with the lack of full briefing or oral argument (the majority considered the issue “thoroughly briefed”.) Beyond that, Breyer finds it far from certain that the government would lose this case (factor one in the granting or denial of a stay). The current moratorium is “substantially more tailored” than the previous order; the latter applied nationwide and the current one applies only to regions in which COVID rates are “sky rocketing.”

The dissent does not agree that the actions of the CDC were beyond its authority under the Public Health Services Act. In fact, Breyer points out that it has happened before, sort of. From the New York Times in January 1920:

[T]he Health Department . . . instruct[s] all landlords that no person suffering from [influenza and pneumonia] can be removed under any condition whatever without the sanction of the Health Department . . .

This was under state law, though, not federal (which makes a difference, considering the per curiam’s view that the states have authority over landlord/tenant matters.) Nevertheless, Breyer reasons, if actions like this were not meant to be included in the authority vested by the Act, “Congress… likely would have said so.”

The dissent’s view of the second half of the act is that it is not meant to constrain the powers granted but to make clear that the government may take actions that affect personal property. The implication is this would include real property. Breyer also cites the words of one of the Act’s drafters regarding the second sentence in 1944:

“[t]he second sentence of subsection (a)” was written not to limit the broad authority contained in the first sentence, but to “expressly authorize . . . inspections and . . . other steps necessary in the enforcement of quarantine.”

Breyer takes issue with the majority’s opinion that Congress must be clear if it intends a result like this. He considers Congress’s extension of the CDC’s order back in December as a tacit approval, and sufficient proof that the moratorium was within the scope of the Act.

Many critics of the most recent CDC order find it foolish that the government took an action for which it had clearly been warned would not be upheld; when the stay was left in place in June, the Court strongly suggested that it would not do so again. But the dissent does not agree that this was a foregone conclusion, “whatever one Justice might have said in a concurrence” (did you feel that poke, Brett?)

Breyer dismisses the majority’s reasoning that the imbalance of equities favored the tenants to the detriment of the landlords, citing the same $50 billion appropriation for rental assistance the majority mentioned, and the fact that the moratorium requires the tenants to make efforts to pay “as close to the full rental payment as possible.” The fact that it can take some time to get the money is not as much of a hardship as the effects of the current spike of COVID cases, which the dissenting justices believe will be made worse by the end of the moratorium.

Look back at the order’s criteria for temporary eviction relief. The CDC targets only those people who have nowhere else to live, in areas with dangerous levels of community transmission. These people may end up with relatives, in shelters, or seeking beds in other congregant facilities where the doubly contagious Delta variant threatens to spread quickly.

The public interest is not well-served by ending the moratorium, Breyer opines, as he expects a surge of evictions. He cites a CDC model which shows “up to 30% increased risk of contracting COVID-19 for some evicted people and those who share housing with them after displacement…”

Furthermore, Breyer says, at the time of the Court’s June order, COVID-19 numbers were trending downward, lessening the public health interest of the moratorium and diminishing its necessity. Now, however, 90% of counties in the country “are experiencing high transmission rates.”

***
I spend a lot of time as a Supreme Court apologist, defending unpopular rulings as objective interpretations of the law and insisting that the justices are, by and large, acting in good faith. I am going to do so again.

The results of this decision are lamentable, and there will very likely be a wave of evictions to follow. In a dynamic in which people who are fortunate enough to own investment properties are pitted against those who are in danger of becoming homeless, I tend to side with those who will find themselves in the worse predicament. That’s the bleeding heart liberal in me.¹

Nevertheless, I side with the majority on this decision – this should have been an act of Congress, as it was in the beginning, or even an act of state legislatures. I agree that the government’s interpretation of the Act would provide near-limitless authority. If you disagree, consider how many federal laws have made it onto the books via a backward pretzel-twist somersault into the Commerce Clause.

If the fallout from this is as ugly as I fear, don’t blame the nine lawyers sitting in the big chairs in DC, or even six of them; blame the 535 members of Congress. The “greatest deliberative body in the world” hasn’t done anything to fix a problem which the Supreme Court clearly told them was theirs to fix.

Bottom line: if the Court’s decision upsets you, focus on evicting those folks from The People’s House.

1. And then you have guys like this, the validation for every person who sees landlords as greedy, mustache twisting villains.