In a closely watched 5-4 decision, the U.S. Supreme Court sided against the challengers to the eviction moratorium issued by the Centers for Disease Control and Prevention (CDC), keeping a stay in place that leaves the eviction ban in effect through July 31. The CDC has indicated it will not renew the eviction moratorium when it expires at the end of the month.
The CDC’s eviction moratorium was first adopted at the expiration of the CARES Act’s limited eviction protection for federally funded rental properties. The more broadly applicable order, extended under both the Trump and Biden administrations, prohibited landlords from evicting tenants unable to pay due to the financial impacts of the COVID-19 pandemic, when the tenant confirmed in writing that they had done their best to make any partial payment, were at risk of becoming homeless or having to move into unsafe group housing, and earn below a set income limit. The CDC extended the order most recently on June 24. In announcing that one-month extension, CDC director Dr. Rochelle Walensky indicated that it would be the order’s final extension.
The order has been the subject of numerous legal challenges since its issuance. Most recently, Judge Dabney Friedrich of the of the U.S. District Court for the District of Columbia held that the CDC went beyond its statutory authority under the Public Health Service Act, finding that “vacatur is the appropriate remedy.” However, a stay of the decision was granted to allow the CDC to appeal to ruling to the DC Circuit before going into effect. The DC Circuit subsequently kept the stay in place.
With that decision, the petitioners asked the Supreme Court to lift the stay and vacate the order nationwide. Chief Justice Roberts and Justices Breyer, Kagan, Sotomayor and Kavanaugh voted to deny lifting the stay. In a brief written concurrence, Justice Kavanaugh wrote that while he ultimately agreed with the District Court that the CDC had exceeded its existing statutory authority, the Court should not hear the matter given the pending expiration of the moratorium on July 31. By allowing the order to remain in place until then, “those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds.” He went on to write that any further extension of the eviction moratorium would require, “clear and specific congressional authorization (via new legislation)[.]” Justices Thomas, Alito, Gorsuch and Barrett would have granted the application to vacate the stay and have the order invalidated nationwide immediately.
With the CDC announcing that the order will not be extended further and with Justice Kavanaugh further indicating that there would be five votes against the order’s constitutionality should it receive a full hearing on the merits, July 31 marks the likely end of the much-litigated pandemic eviction moratorium. With Congress unlikely to adopt any further protections by this deadline, evictions may pick up pace nationwide where not otherwise prohibited under state or local orders.