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SCOTUS Ends CDC Eviction Moratorium Through 'Shadow Docket'

By Joseph Fawbush, Esq. on August 31, 2021 8:50 AM

As expected, the Supreme Court has lifted the Centers for Disease Control and Prevention's most recent eviction moratorium, holding that the CDC does not have the authority to prevent evictions under federal law. The decision is another example of the increasing use of the Supreme Court's "shadow docket," the heavily scrutinized practice by the Justices of issuing unsigned decisions on emergency motions without a full briefing or argument.

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The Eviction Moratorium Timeline

Congress originally issued a temporary eviction moratorium shortly after the onset of COVID in early 2020, with the goal of minimizing homelessness and the further spread of the virus. This moratorium, part of the CARES Act, lasted only 120 days. That July, Congress chose not to extend the moratorium.

The CDC, concerned over the continued health and economic impact of COVID, issued its own eviction moratorium in September of 2020, that lasted through the end of that year. In 2021, the new Congress then extended the administratively imposed moratorium for one month, but failed to issue any more. The CDC, amid new concerns over the Delta variant, extended it further multiple times without Congressional action.

The CDC's extension was challenged. In May of 2021, the U.S. District Court for the District of Columbia granted the plaintiffs summary judgment, holding that no federal law granted the CDC the power to issue its own eviction moratorium. However, the court issued a stay of its decision so that the CDC could appeal.

In June, 2021, the Supreme Court declined to vacate this stay, meaning the eviction could stay in place. Justice Kavanaugh, apparently the deciding vote, wrote in a concurrence that while he believed the CDC did not have the authority to extend the moratorium, the balance of equities justified leaving the stay in place, and reasoned that, in any case, that the moratorium was set to expire in July.

In August, the CDC issued another extension through the beginning of October, leading many, including President Biden, to predict that the Supreme Court would strike down the extension. As expected, the Court vacated the stay in a per curiam decision, with Justices Breyer, Sotomayor, and Kagan dissenting. As a result, the CDC's eviction moratorium will end.

The CDC's Authority Under Federal Law

The CDC relied on the Public Health Service Act to impose and extend the moratorium. Under this act,

“[t]he Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession."

However, as the Supreme Court opinion notes, this law is rarely invoked and has never been used before to issue an eviction moratorium. The PHSA cites specific examples of the Surgeon General's power under the statute, including the authority to conduct inspections and destroy animals which pose a danger to public health. These illustrations, the majority opinion argues, "informs the grant of authority" that Congress gave the CDC under the law. In other words, these examples limit the otherwise broad delegation of authority under the PHSA.

The majority holds that an eviction moratorium goes beyond the power granted in the statute and is only tangentially related to controlling the COVID outbreak. As such, the plaintiffs would be substantially likely to win on the merits of the lawsuit; the majority notes that "it is difficult to imagine them losing." Therefore, they reason, vacating the stay is appropriate.

The Dissenting Opinion

Justice Breyer, who authored the dissent, argued that "it is far from demonstrably clear" that the CDC lacked authority to issue its more tailored eviction moratorium. According to him, the first sentence of the PHSA (quoted above) gives the CDC wide authority to contain disease outbreaks, and goes on to specifically allow for quarantines, which he maintains "arguably impose greater restrictions on individuals' rights . . . than do limits on evictions."

Finally, Justice Breyer wrote that the balance of equities strongly favors leaving the stay in place, and that the public interest "strongly favors respecting the CDC's judgment at this moment, when over 90% of counties are experiencing high transmission rates."

A (Somewhat) Veiled Criticism of the Shadow Docket

Underlying the dissent was veiled criticism of the shadow docket. Justice Breyer wrote that despite "whatever one Justice might have said in a concurrence," the Supreme Court had "said almost nothing" about its reasons for declining to act in its June decision, let alone resolve the question of the scope of the CDC's authority. The dissent also pointed to a split among circuit courts on the question of the CDC's authority to issue eviction moratoriums, implying that this question deserves a full briefing and argument—something that is sacrificed in a per curiam decision.

What's Next?

With the Supreme Court lifting the eviction moratorium, renters will have to hope Congress comes to their aid. Considering Congress' failure to pass an extension, however, the prospects for another eviction moratorium are far from certain.

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