Yesterday, the U.S. Supreme Court stroke down Biden’s unilateral eviction moratorium, which had been authorized by the CDC earlier this month. The court decided to block the implementation of such a decision by a 6-3 majority, with all six “conservative” justices voting to ban the policy while all 3 “liberal” justices voting to sustain it.
The decision is hardly a surprise for anyone, as the D.C. District Court had previously ruled that the CDC was overstepping its authority by imposing a nationwide eviction moratorium back in May. The Court then allowed the moratorium ban to remain in place in a 5-4 decision, with Justices Kavanaugh and Chief Justice Roberts saying that while they thought the CDC had overstepped its authority, they would not cancel the moratorium as it was set to expire in June.
In separate writing, Justice Kavanaugh wrote that he approved the extension of the moratorium since it was scheduled to end in a few weeks and that the time could be used to better distribute the federal funds destined to landlords affected by the moratorium. However, he clearly warned that any new moratorium would require “clear and specific congressional authorization”. The CDC director had also issued a statement explaining that this was intended to be “the final extension of the moratorium”.
However, the Biden administration had announced a new nationwide moratorium on August 3rd, after suffering some pressure from the progressive wing of their party, despite Biden’s own admission that the order was probably unconstitutional, the moratorium was immediately contested in the courts by real estate agents and landlords.
The Supreme Court ruled that the CDC had overstepped its authority
Unsurprisingly, both Justices Kavanaugh and Chief Justice Roberts changed their votes from the early decision and voted to end the moratorium proposed by Biden and the CDC. In an 8-page opinion, the six “conservative” justices argued that “the CDC had imposed a nationwide moratorium (…) in reliance of a decades-old statute that authorizes it to implement measures like fumigation and pest extermination”.
The Court also highlighted that the provision in the Public Health Services Act invoked by the CDC to impose its moratorium, had “rarely been invoked — and never before to justify an eviction moratorium”. The justices also argued that the government’s legal justification for the new moratorium, which would cover “at least 80% of the country”, would provide the CDC “a breathtaking amount of authority” and that the moratorium had put landlords across the country “at risk of irreparable cost by depriving them of rent payments with no guarantee of eventual recovery”.
The majority concluded that even if everyone could agree that combating COVID-19 is something that the public has a great interest in, that does not imply that agencies can “act unlawfully even in the pursuit of desirable ends”, finalizing their opinion by saying that “if a federally imposed moratorium is to continue, Congress must specifically authorize it”.
The three justices who dissented argued, in an opinion written by Justice Breyer, that not only the CDC did have the authority to enact a nationwide eviction moratorium, as the law allows the government to enact measures like quarantines to contain infectious diseases, which Breyer argues “impose greater restrictions on individuals’ rights and state police powers than evictions”.
Breyer also argues that the damages caused to landlords by the moratorium would be mitigated by the Federal Government’s allocation of $46.5 billion to help pay rent (although only $4.7 billion have actually been distributed) and the CDC’s orders to tenants to pay “as close to the full rent payment as possible”.
He also argues that blocking the moratorium would also create “irreparable harm”, citing the rise of COVID-19 cases nationwide and a 13.3% increase in hospitalization rates across the country. Breyer also argues that “the public interest is not favored by the spread of a disease or a court’s second-guessing the CDC’s judgment”.
Democrats have railed against the Court’s decision
Democratic politicians have panned the Supreme Court for their decision, with Speaker Nancy Pelosi (D-CA) saying that the Court had “immorally ripped away that relief in a ruling that is arbitrary and cruel”, New York City’s Mayor Bill de Blasio criticized the decision, calling the Supreme Court a “group of right-wing extremists” that decided to expel families from their homes “during a global pandemic”.
Other representatives have used the decision to fuel their calls to pack the court by adding more justices who are liberal-leaning, with Rep. Mondaire Jones (D-NY) calling for constituents to call their representatives and pressure them to support a bill that would increase the size of the court with the aim of “restore balance”.
Rep. Cori Bush (D-MO) even criticized her fellow Democrats, asking if some of the Democrats who “attempted to sink the Biden agenda (…) part of the same group blocking legislation to extend the moratorium”.
Progressives pushed Biden to extend the moratorium, which the Court had already signaled was probably unconstitutional. Although the CDC promised the June moratorium was the final extension, the Biden Administration caved to the pressure and extended the order, which the Court predictably ended.