The Supreme Court Will Keep The Federal Eviction Moratorium In Place While Legal Fights Go Forward

The moratorium, which has protected renters during the coronavirus pandemic, is currently set to expire at the end of July.

WASHINGTON — The federal moratorium on evictions will remain in effect after the US Supreme Court on Tuesday denied a request to abruptly end it. The order leaves intact — for now — a policy that renters nationwide have relied on to ease financial hardships caused by the coronavirus pandemic.

The moratorium adopted by the Centers for Disease Control and Prevention was set to expire on June 30; near the end of the month, the CDC announced a “final” extension to July 31. In a 5–4 order, the justices refused to intervene in an ongoing legal fight brought by landlord and real estate industry groups that sued over the policy. The Supreme Court’s order means the moratorium will stay in place for now and the case will continue in the lower courts.

Chief Justice John Roberts Jr. and Justice Brett Kavanaugh joined with the court’s liberal wing, Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor, to preserve the moratorium for another month. The order stated that the rest of the court’s conservative members, Justices Clarence Thomas, Samuel Alito Jr., Neil Gorsuch, and Amy Coney Barrett, would have lifted a lower court order that kept the moratorium in place while legal challenges went forward.

Kavanaugh wrote a one-paragraph concurring statement making clear that he agreed with the challengers who had sued that the moratorium was unlawful, but that the CDC’s decision to specify that the latest extension would be the last one persuaded him that the court shouldn’t step in now.

“Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application,” Kavanaugh wrote.

Although the real estate industry groups that sued didn't get the immediate order lifting the moratorium that they'd asked for, the National Association of Realtors released a statement calling the outcome "a massive victory for property rights" because it would still come to an end soon. The group's president Charlie Oppler said the order "keeps in place certainty for tenants for another month while bringing clarity to struggling housing providers."

"With the pandemic waning and the economy improving, it is time to restore the housing sector to its healthy, former function. Property owners also deserved this absolute clarity from our federal court system regarding property rights in America to avoid similar financial harm in the future," Oppler said.

A spokesperson for the CDC and the Justice Department did not immediately return a request for comment.

There are approximately 43 million renters in the United States, according to research cited by the CDC in the latest moratorium order. Based on ongoing “pulse” surveys, the Census Bureau found that as of May, roughly 4 million people were at risk of eviction or foreclosure in the next two months because they weren’t current on their rent or their mortgage.

The CDC’s role in freezing evictions during the pandemic began in September when the agency issued the original moratorium. Before that, Congress had included a 120-day moratorium in COVID-19 relief legislation, but that expired in July 2020. The CDC declared that keeping people in their homes was part of the public health response to the pandemic: Evictions increased the likelihood that people would move in with family or friends, or go to homeless shelters or other congregate living spaces, all of which undermined efforts to stop the disease from spreading.

Congress extended the first CDC moratorium through the end of January, and then the CDC extended it three more times, through March, then through June, and now through the end of July. The industry groups that sued had petitioned the Supreme Court to step in on June 3. After several weeks of inaction by the justices, the industry challengers filed a letter on June 23 re-upping their request for the court to intervene before the CDC announced another extension.

The case that wound up before the Supreme Court began in the federal district court in Washington, DC, where a group of rental property managers and real estate trade groups sued the CDC.

The case centered on a section of the Public Health Service Act that gives the CDC power to adopt regulations to stop the spread of communicable diseases. The law then lists examples of specific fixes the CDC can order: “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.” The challengers argued that this list imposed limits on the CDC’s authority and wouldn’t cover something like an eviction moratorium; the government argued the law gave the CDC far greater authority to adopt measures to stop diseases from spreading.

US District Judge Dabney Friedrich sided with the challengers. In an opinion in early May, she wrote that although the pandemic was a “serious public health crisis that has presented unprecedented challenges for public health officials and the nation as a whole,” the government’s interpretation of the law “goes too far.” The government had asked Friedrich to limit any order only to the groups that sued, but she issued a nationwide decision.

“It is the role of the political branches, and not the courts, to assess the merits of policy measures designed to combat the spread of disease, even during a global pandemic,” Friedrich wrote. “The question for the Court is a narrow one: Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not.”

Friedrich granted the government’s request to pause her order while the government asked the DC Circuit to step in, and on June 2 the appeals court kept the pause on Friedrich’s decision in place. It wasn’t a final ruling on the merits of the case, but the three-judge panel wrote that they believed the government was likely to win in the end. The challengers filed a petition the next day asking the Supreme Court to intervene.

Landlords and other industry groups have brought similar lawsuits challenging the federal eviction moratorium in other courts across the country, with mixed results. In March, a federal district judge in Tennessee concluded the moratorium was unlawful, but instead of completely striking it down, ruled that the CDC couldn’t enforce it in his district in the western part of the state. The US Court of Appeals for the 6th Circuit denied the Justice Department’s request to pause that order while the government appealed the judge’s decision.

A federal judge in Atlanta sided with the CDC in October and the challengers appealed to the 11th Circuit. That appeals court rejected a request to block the moratorium while the appeal was pending and heard arguments on May 14; the court has yet to rule. Meanwhile, a federal judge in Louisiana sided with the government in December, a federal judge in Texas sided with challengers in February, and a federal judge in Ohio sided with the challengers in March; all of those cases are pending before appeals courts.

The DC case that landed before the Supreme Court was the only one to involve an order that would have struck down the moratorium nationwide.

The latest order doesn’t set any legal precedent that would apply in any of these cases as they go forward, but it sends a message about how the justices are likely to respond to any future efforts in the next month to get the court to step in on an emergency basis.

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