On June 23, 2021, New York Governor Andrew Cuomo announced an end to the state disaster emergency he first declared on March 7, 2020 to contain the spread of COVID-19. Citing significantly reduced rates of infection and increased rates of vaccination, the governor’s office announced that the public health emergency would expire after June 24, 2021. “We’re starting to write a new chapter for a post-COVID New York – the state disaster emergency is ending and we can focus on reimaging, rebuilding and renewing our state,” the governor said in his announcement. This new chapter marks an end to the COVID-19-era exercise of emergency powers that Governor Cuomo claimed through his March 7 Executive Order, which allowed him to temporarily suspend or modify state laws related to consumer protections, outdoor dining, and public gatherings, among others. Still, certain federal guidelines remain in place in New York, including the need to wear a mask while traveling on public transportation or visiting hospitals, nursing homes, or correctional facilities. New York has also adopted the Centers for Disease Control and Prevention’s (CDC) Interim Public Health Recommendations for Fully Vaccinated People (the “Recommendations”), issued on May 13, 2021. Thus, while businesses may choose to require masks and social distancing, they may also adhere to the Recommendations, which encourage only non-vaccinated people to wear masks in most settings.
As the CDC continues to reevaluate the Recommendations, its director, Dr. Rochelle Walensky, has extended the agency’s nationwide residential eviction moratorium (the “Order”) for an additional month, until July 31, 2021. The Order has been the subject of intense scrutiny in federal courts across the country, as we discussed in our March 4, March 15, and May 6 client alerts. Most recently, we provided an update to the Alabama Association case, which a coalition of landlords and realtors first brought against the CDC to prevent its continued enforcement of the Order in contravention, they argued, of federal law and the U.S. Constitution (Alabama Association of Realtors, et al. v. U.S. Dep’t of Health and Human Services, et al., Case No. 1:20-cv-03377, United States District Court of the District of Columbia). On May 6, 2021, District Judge Dabney Friedrich issued a stay of her decision to set aside the Order, which the U.S. Court of Appeals for the District of Columbia Circuit upheld by per curiam order on June 2, 2021. This decision by the D.C. Circuit prompted an appeal to the U.S. Supreme Court, where the Justices evaluated the landlord plaintiffs’ application to vacate Judge Friedrich’s stay.
On June 29, 2021, the Supreme Court narrowly ruled, 5 to 4, in the CDC’s favor, declining to vacate the stay (Alabama Association of Realtors, et al. v. Dep’t of Health and Human Services, et al., 594 U.S. ____ (2021)). While Justices Thomas, Alito, Gorsuch, and Barrett would have ended the CDC’s eviction moratorium, Chief Justice Roberts, joined by Justices Kavanaugh, Kagan, Sotomayor, and Breyer, voted not to grant the plaintiffs’ application. In his concurring opinion, Justice Kavanaugh cited his agreement with Judge Friedrich that the CDC had exceeded its statutory authority. Still, he voted not to set aside the Order primarily because it expires so soon: “[These] few weeks [until July 31] will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds.” With his concurrence, Justice Kavanaugh clarified that any proposed extension of the Order beyond July 31 would, in his view, require legislation empowering Congress to authorize it. President Biden’s administration has stated that the CDC’s recent extension is for “one final month,” suggesting, perhaps, that there is no intention to further extend the Order.
We will continue to monitor this case and related issues, and we will provide updates. Please do not hesitate to contact the Morrison & Foerster team if you have any questions.