On August 26, 2021, the Supreme Court issued a per curiam opinion blocking the U.S. Centers for Disease Control and Prevention’s (CDC) August 3, 2021 order (“New Order”), a last-ditch effort by the Biden administration to extend the CDC’s now-expired nationwide eviction moratorium (“Previous Moratorium”) on residential evictions (Alabama Ass’n of Realtors, et al. v. Dep’t of Health and Human Services, et al., Case No. 21A23, 594 U.S. ____ (2021)). The Alabama Association of Realtors, a trade group of landlords and property owners, once again asked the Court to vacate a stay that District Judge Dabney Friedrich first ordered on May 6, 2021. As discussed in our July 1, 2021 client alert, that stay set aside Judge Friedrich’s own decision to block the Previous Moratorium based on her finding that the CDC had exceeded its authority under the Public Health Services Act, 42 U.S.C. § 264(a) (the “Act”). The U.S. Court of Appeals for the District of Columbia Circuit upheld the stay in early June, and the Supreme Court narrowly agreed to do the same shortly thereafter, keeping the Previous Moratorium in place until its expiration on July 31, 2021 (Alabama Ass’n of Realtors, et al. v. Dep’t of Health and Human Services, et al., 594 U.S. ____ (2021)). When the CDC effectively replaced the Previous Moratorium with its New Order, the Alabama Association plaintiffs renewed their efforts to vacate Judge Friedrich’s stay – which efforts were again rejected by each of the U.S. District Court for the District of Columbia and the D.C. Circuit. (2021 WL 3577367, *6 (Aug. 13, 2021); 2021 WL 3721431 (Aug. 20, 2021).)
On review of those rulings, the Supreme Court sided with the plaintiffs and held that “[i]f a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.” The holding rests primarily on the Court’s interpretation of the Act, pursuant to which the CDC has claimed it has requisite authority to pass the Previous Moratorium and the New Order. Notably, the majority devoted most of its opinion to dismantling that claim, which it characterized as “unprecedented” in view of the New Order’s and Previous Moratorium’s expansive scope: “the Government’s read of [the Act] would give the CDC a breathtaking amount of authority. It is hard to see what measures this interpretation would place outside the CDC’s reach, and the Government has identified no limit in [the Act] beyond the requirement that the CDC deem a measure ‘necessary.’”
Though it brings an end to the CDC’s latest attempt to restrict evictions in order to slow the spread of COVID-19, the Court’s ruling clears a path for intervention by Congress.
We will continue to monitor this issue, and we will provide updates. Please do not hesitate to contact the Morrison & Foerster team if you have any questions.
Michael Machado, a Law Clerk in our New York office, contributed to the writing of this alert.