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Evictions Can Resume After The Supreme Court Halted The Biden Administration’s Coronavirus Moratorium

The Biden administration had revived a pause on evictions as the Delta variant causes COVID-19 cases to spike.

Last updated on August 26, 2021, at 10:23 p.m. ET

Posted on August 26, 2021, at 9:40 p.m. ET

Boston Globe / Boston Globe via Getty Images

WASHINGTON — Evictions can resume nationwide after the US Supreme Court on Thursday night halted the Biden administration’s latest attempt at keeping people in their homes as cases of COVID-19 surge due to the highly contagious Delta variant.

The court's conservative majority held that the latest pause on evictions issued by the Centers for Disease Control and Prevention on Aug. 3 could no longer be enforced as a legal challenge went forward in the lower courts. The decision affects potentially millions of households where people are behind on their rent, according to statistics presented by the Justice Department.

The majority opinion wasn’t signed by any one justice as the author; although it's likely all six of the court's more conservative members joined the decision, it only takes five votes to issue this type of order when a case comes up to the court on an emergency basis. Justice Stephen Breyer, joined by Justices Sonia Sotomayor and Elena Kagan, dissented, making clear where they stood.

The justices held that the landlord and real estate industry groups that sued were “virtually certain to succeed” in arguing that the CDC lacked the legal authority to pause evictions during a global pandemic. Congress had not explicitly given the agency the power to do that, the majority wrote.

“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 majority’s opinion stated.

The White House released a statement calling on any federal, state, and local authorities with the power to stop evictions — as well as landlords — to do so.

"The Biden Administration is disappointed that the Supreme Court has blocked the most recent CDC eviction moratorium while confirmed cases of the Delta variant are significant across the country. As a result of this ruling, families will face the painful impact of evictions, and communities across the country will face greater risk of exposure to COVID-19," press secretary Jen Psaki said.

It was the second time that a fight over the CDC’s efforts to halt evictions as a public health response to a pandemic had reached the Supreme Court. The first time, the government prevailed, although it was a narrow win and one that came with a strong warning that the justices were likely to block any future attempt at a similar federal moratorium on evictions.

The Biden administration was poised to allow an earlier version of the moratorium to expire at the end of July; the policy had started in 2020 and Congress and the CDC repeatedly extended it as the pandemic raged. Landlord and real estate industry groups sued, and a federal judge in Washington, DC, concluded that it was unlawful. The government immediately appealed and the US Court of Appeals for the DC Circuit agreed to pause the lower court’s decision and keep the moratorium in place while the Justice Department pursued its full appeal.

The landlord challengers then petitioned the Supreme Court to intervene. The July 31 end date ultimately convinced a majority of the justices in a 5–4 order to allow it to remain in place for a few more weeks when the fight first reached the Supreme Court in June.

In a one-paragraph statement that foreshadowed Thursday’s loss for the government, however, Justice Brett Kavanaugh wrote separately to make clear that he agreed with the challengers that the moratorium was unlawful, but would let it stand because the July 31 expiration was already on the books. Kavanaugh, Chief Justice John Roberts Jr., and the three members of the court’s liberal wing — Breyer, Sotomayor, and Kagan — made up the five-justice majority.

As that end date approached, however, and faced with the sudden and swift spread of the Delta variant — and no action from Congress to delay evictions further — the Biden administration decided to adopt a new version of the moratorium. Unlike the previous one, it wasn’t nationwide; it halted evictions in parts of the country “experiencing substantial or high levels of community transmission.” But the CDC noted at the time that more than 80% of counties met that criteria as of the beginning of August, which meant it would still have a broad reach.

The new order was set to expire on Oct. 3. The CDC reasoned that allowing people to remain in their homes — as opposed to the communal options they were likely to seek out if they were evicted, such as moving in with family members or public shelters — would help stop the spread of COVID-19.

The landlord and real estate industry groups that had gone to court to challenge the original eviction moratorium again raced to court. The district court judge who was still presiding over the case once again indicated she was prepared to strike down the moratorium, but declined to immediately block it, given the previous orders from the last round. The DC Circuit also denied the challengers’ request to block the order right away, and the case swiftly moved back up to the justices.

President Joe Biden had publicly acknowledged that the administration was on shaky legal ground when the new moratorium was announced earlier this month. But he said at the time that it was worth trying and, at a minimum, would provide a bit more time for relief programs to get financial assistance to people facing eviction.

“The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster. Number one. But there are several key scholars who think that it may and it’s worth the effort,” Biden told reporters at an Aug. 3 press conference.

In Thursday night’s opinion, the justices in the majority wrote that the geographic limit in the new version of the moratorium wasn’t enough, describing it as “indistinguishable from the old.”

The CDC adopted the moratorium based on a federal law that empowered the agency to take dramatic steps to stop the spread of communicable diseases. The law in one section listed examples of specific fixes that the CDC could 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 restricted the CDC’s options and wouldn’t cover an eviction moratorium; the government argued the law gave the CDC far greater authority to adopt measures to stop diseases from spreading and wasn’t limited by the list of examples.

The Supreme Court majority on Thursday sided with the challengers, writing that the public health law was clearly aimed at efforts to directly eradicate a particular disease. A ban on evictions to stop people from moving around and potentially infecting those around them was too indirect to fall under the law, the justices wrote, and allowing that interpretation would give the CDC “a breathtaking amount of authority.”

The opinion expressed concern for the loss of income by landlords and said the government’s interests in the case had gone down because they’d had even more time to carry out financial assistance programs to renters and were on notice that the moratorium might be coming to a final end. Any future federal eviction moratorium had to be approved by Congress, they wrote.

“It is indisputable that the public has a strong interest in combating the spread of the COVID–19 Delta variant. But our system does not permit agencies to act unlawfully even in pursuit of desirable ends,” the justices in the majority wrote.

In his dissent, Breyer gave the Biden administration more credit for trying to narrow the scope of the moratorium, even as its reach across the country was growing because of how swiftly the disease was again spreading. He wrote that he wasn’t convinced that the government would lose on the merits of the case, giving more weight to the argument that the public health law at issue did give the CDC broader power to act.

The spike in COVID-19 cases also should have tipped the scales in favor of keeping the moratorium in place, Breyer wrote, at least while the government’s appeal in the underlying case continued to work its way through the courts.

“[T]he public interest is not favored by the spread of disease or a court’s second-guessing of the CDC’s judgment,” Breyer wrote.

A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.