On August 26, 2021, the U.S. Supreme Court cleared the way for a District Court order to go into effect which vacated the Centers for Disease Control and Prevention’s latest nationwide eviction moratorium. The Court’s language in the opinion was revealing on how the Court majority understands the role of checks and balances between state and federal power, as well as the limitations on federal agencies.
A Review of the History on the Eviction Moratorium
In March of 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act attempting to alleviate burdens caused by the forced government shut down in response to the COVID-19 pandemic. One of the relief programs under the CARES Act was a 120-day eviction moratorium for properties that participated in federal assistance programs or were subject to federally backed loans. When the 120 days expired, Congress did not renew the eviction moratorium. The CDC concluded that the moratorium should continue. So, it just did it, and kept doing it.
The Court found that the CDC’s imposed moratorium “went further than its statutory predecessor, covering all residential properties nationwide and imposing criminal penalties on violators.” The CDC’s moratorium was originally set to expire on December 31, 2020, but “Congress extended it for one month as part of the second COVID-19 relief Act.” As the expiration of this extension grew near, the CDC again “took matters into its own hands” and extended the moratorium through March, then through June, and finally through July.
Lacking cover from recent legislation by Congress on COVID-19, the CDC claimed authority for this action based on §361(a) of the Public Health Service Act, originally passed in 1944. Realtor associations and rental property managers in Alabama and Georgia sued the CDC to enjoin the eviction moratorium in a suit styled Alabama Assn. of Realtors v. Department of Health and Human Servs. The Plaintiffs won on summary judgment in the U.S. District Court for the District of Columbia. The district court held that the CDC lacked authority to impose a moratorium. However, the district court stayed its order pending the CDC’s appeal of the judgment against it.
In July, even though agreeing that the CDC had exceeded its statutory authority, the Supreme Court originally declined to lift the stay because the CDC’s moratorium was set to expire “in only a few weeks” during which time the distribution of rental assistance funds from Congress would be more broadly disbursed, balancing the equities of the matter. Nevertheless, in spite of the Court’s warning that it had exceeded its authority, the CDC again renewed its imposed moratorium just three days after its expiration at the end of July.
This renewal prompted the Plaintiffs to return to their attempts to enforce the judgment already granted by the District Court. Unfortunately for the Plaintiffs, the District Court felt bound by the Appellate Court’s ruling supporting the CDC and left the stay in place. Now having gone through the lower courts twice, the Plaintiffs once again sought relief from the Supreme Court requesting it to lift the District Court’s stay and enforce the judgment they had already won.
What the Court Said
The Supreme Court found the CDC’s reliance on the Public Health Service Act for the imposition of a nationwide eviction moratorium to be tenuous at best. The Court noted that the provision relied upon by the CDC had “rarely been invoked – and never before to justify an eviction moratorium.” The Court stated further that “regulations under this authority have generally been limited to quarantining infected individuals and prohibiting the import or sale of animals known to transmit disease.”
The CDC’s argument stated its justification for the moratorium was that “if evictions occur, some subset of tenants might move from one State to another, and some subset of that group might do so while infected with COVID-19.” The Court found this logic to be “markedly different from the direct targeting of disease that characterizes the measures identified in the statute,” calling the CDC’s claim of authority to impose the moratorium a “stretch.”
Noting that at least 80% of the country falls within the purview of the CDC’s moratorium, the Court stated, “We expect Congress to speak clearly when authorizing an agency to exercise powers of ‘vast economic and political significance…’ That is exactly the kind of power that the CDC claims here.” After discussing the economic impact on realtors and landlords of the CDC’s moratorium, the Court made a point to state that the issues were not merely financial.
According to the Court, the moratorium intrudes upon an area that is the “particular domain” of state law: the landlord-tenant relationship. Supreme Court precedents require a clear action of Congress to “enact exceedingly clear language” to alter the balance between federal and state power in such a significant way. In this case, the Court found that the Government’s interpretation of Public Health Service Act would give the CDC “a breathtaking amount of authority” and “the Government has identified no limit in [the Act] beyond the requirement that the CDC deem a measure ‘necessary.’” The 6-3 majority found that “our system does not permit agencies to act unlawfully even in pursuit of desirable ends.”
This sweeping power claimed by the CDC has put “millions of landlords across the country at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery,” the Court stated. Preventing them from evicting tenants who breach their leases “intrudes on one of the most fundamental elements of property ownership – the right to exclude.” Finally, the Court stated that it is up to Congress to decide whether the public interest merits further action on the eviction moratorium.
With this decision, Plaintiff’s may enforce the District Court’s judgment, which means that the CDC’s eviction moratorium is no longer in effect. Landlords may pursue eviction proceedings regardless of a tenant’s financial status impacted by COVID-19.
As with anything pronounced by the Supreme Court, broader implications usually apply. It will be interesting to see how this opinion will be used to attempt to curtail the actions of other agencies, such as the Department of Labor, OSHA and others, where regulations and other impositions by an agency may be viewed as invading a “particular domain” of state law or beyond their grant of statutory authority.