The Centers for Disease Control (CDC)-imposed nationwide moratorium on evictions is over. August 26, the Supreme Court ruled that the realtors challenging the agency action were “virtually certain” to be successful at trial, arguing the CDC exceeded its authority. If an eviction pause like this were to be implemented, the Court ruled, Congress would have to authorize it with legislation. The late-evening ruling came from an appeal of an ongoing case, and the justices divided along ideological lines. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan signed on to Breyer’s dissent, while the majority’s opinion was unsigned.
Making It Up As They Go Along…
The moratorium in this case concerned “evictions of any tenants who live in a county that is experiencing substantial or high levels of COVID-19 transmission and who make certain declarations of financial need.” It was enacted this summer after a previous version expired, and a group of Alabama and Georgia realtors and landlords sued to stop this exercise of executive power.
The administration indicated that the CDC would not extend the eviction freeze when it expired July 31. When Congress did not pass its own version to replace the original, though, the CDC issued a new one. It was slightly more restrictive than the previous version and was slated to last until Oct. 3.
The Supreme Court said it would be one thing if the law authorized this course of action; then the Court would have to contend with the text. However, it found no such challenge in this case and said:
“Instead, 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. It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.”
The latest version relied on the same statutory authority, a law giving the CDC the power to issue regulations to stop the spread of infectious diseases. The majority of the Court’s justices were having none of it:
“The applicants not only have a substantial likelihood of success on the merits—it is difficult to imagine them losing.”
That’s about as powerful a statement about future success in a case as the Supreme Court has ever given. The opinion then identified why it would be preposterous to conclude that the CDC had the requisite power under existing law. In closing, the majority wrote, “our system does not permit agencies to act unlawfully even in pursuit of desirable ends.”
Dissent Is Still Patriotic, Right?
As SCOTUSblog’s Amy Howe put it, Justice Breyer was “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.’”
This was the second loss this week for the Biden administration at the Supreme Court. Earlier, the Court, by the same 6-3 vote, overturned the executive’s attempt to change President Trump’s Remain in Mexico asylum procedure.
Read more from Scott D. Cosenza.