Block on evictions is struck
Justices say move by CDC unlawful
WASHINGTON — A divided Supreme Court has ended a national moratorium on evictions in parts of the country ravaged by the coronavirus pandemic, removing protections for millions of Americans who have not been able to make rent payments.
Roughly 3.5 million people in the U.S. said they faced eviction in the next two months, according to Census Bureau data from early August.
A coalition of landlords and real-estate trade groups in Alabama and Georgia challenged the latest extension of a moratorium imposed by the Centers for Disease Control and Prevention, issued Aug. 3 and intended to run through Oct. 3.
In a 6-3 vote announced Thursday night, the Supreme Court’s conservative majority agreed that the ban on evictions should not stand.
“It is indisputable that the public has a strong interest in combating the spread of the COVID-19
Delta variant,” said the court’s unsigned opinion. “But our system does not permit agencies to act unlawfully even in pursuit of desirable ends … It is up to Congress, not the CDC, to decide whether the public interest merits further action here.”
The justices rejected the administration’s arguments in support of the CDC’s authority.
“If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it,” the court wrote.
The court’s three liberal justices dissented. “The public interest strongly favors respecting the CDC’s judgment at this moment, when over 90% of counties are experiencing high transmission rates,” wrote Justice Stephen Breyer, joined by Justices Sonia Sotomayor and Elena Kagan.
White House press secretary Jen Psaki said the administration was “disappointed” by the decision and said President Joe Biden “is once again calling on all entities that can prevent evictions — from cities and states to local courts, landlords, Cabinet Agencies — to urgently act to prevent evictions.”
A district judge in the District of Columbia and several other courts around the country, said the powers granted to the CDC to protect public health during a pandemic did not include a ban on evictions for those who fell behind on their payments.
But Judge Dabney Friedrich, an appointee of former President Donald Trump, stayed her order so that the administration could appeal.
While the Biden administration asked the Supreme Court to leave in place what it called a “lawful and urgently needed response to an unprecedented public emergency,” a majority of justices already had signaled agreement with Friedrich.
Over the objections of the court’s four most conservative justices, the court in June left a previous version of the eviction ban in place, when it was supposed to expire at the end of July. But Justice Brett Kavanaugh, who cast the deciding vote in that decision, also said he believed any extension of the ban would require explicit congressional action.
The administration at first allowed the earlier moratorium to lapse July 31, saying that it had no legal authority to allow it to continue. But the CDC issued a new moratorium days later as pressure mounted from lawmakers and others to help vulnerable renters stay in their homes as the coronavirus’s delta variant surged. The moratorium had been scheduled to expire Oct. 3.
The new moratorium temporarily halted evictions in counties with “substantial and high levels” of virus transmissions and would cover areas where 90% of the U.S. population lives.
Biden acknowledged the legal boundaries the new moratorium likely would encounter. But Biden said that even with doubts about what courts would do, it was worth a try because it would buy at least a few weeks of time for the distribution of more of the $46.5 billion in rental assistance Congress had approved.
“I went ahead and did it,” Biden told reporters then. “But here’s the deal: I can’t guarantee you the court won’t rule [that] we don’t have that authority. But at least we’ll have the ability, if we have to appeal, to keep this going for a month at least — I hope longer than that.”
The Treasury Department said Wednesday that the pace of distribution has increased and nearly 1 million households have been helped. But only about 11% of the money, just over $5 billion, has been distributed by state and local governments, the department said.
The administration has called on state and local officials to “move more aggressively” in distributing rental assistance funds and urged state and local courts to issue their own moratoriums to “discourage eviction filings” until landlords and tenants have sought the funds.
The challengers in their brief to the court used the president’s words to argue that the administration knew it was on unstable legal ground.
“The only plausible explanation for the extended moratorium is that it was issued in response to political pressure from Capitol Hill for the express purpose of using litigation delays to distribute more rental assistance,” their brief says. “Nearly a year of overreach is enough.”
Congress originally imposed an eviction moratorium. When it expired, then-President Donald Trump ordered the CDC to impose one, which has been extended several times.
PROVISION’S LIMITS
The legal issue involves the Public Health Service Act. It gives the agency authority to “make and enforce such regulations … necessary to prevent the introduction, transmission, or spread of communicable diseases” across states or from foreign lands.
But challengers, and some lower courts who have reviewed the issue, say the power is limited by another provision contained within the act. In describing the agency’s power, it lists measures such as “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.”
To the challengers, that means the CDC is finding its broad authority in a “rarely used statute from 1944 whose domain has previously been limited to matters such as the sale of baby turtles.”
They say the CDC is claiming “unqualified power to take any measure imaginable to stop the spread of any communicable disease — common cold included — whether it be eviction moratoria, worship limits, nationwide lockdowns, school closures, or vaccine mandates.”
The ban on evictions applies to renters who “otherwise would likely need to move to congregate [or shared-living] settings where covid spreads quickly and easily, or would be rendered homeless and forced into shelters or other settings that would increase their susceptibility to covid,” the CDC says.
It did not wipe away rental bills for people who’d fallen behind on payment.
To address that need, Congress allocated $46.5 billion in emergency rental assistance. But the money has been painfully slow to get off the ground. Technical glitches dogged online systems. Landlords and tenants without internet access had even more trouble applying for aid — if they knew about the funding at all.
The amount of money that’s actually reached people in need is a fraction of the $46.5 billion appropriated by Congress for emergency aid.
The White House implored state and local governments, courts, legal aid organizations and community groups to do all they could to slow-track evictions and keep people in their homes.
Depending on where they live, tenants may still be protected by state or municipal bans or restrictions on who may be evicted. Tenants in at least eight states and the District of Columbia will have some pandemic-related protections through the end of August.
It was the second loss for the administration this week at the hands of the high court’s conservative majority. Tuesday, the court effectively allowed the reinstatement of a Trump-era policy forcing asylum-seekers to wait in Mexico for their hearings.