Supreme Court blocks Biden administration's eviction moratorium

Pete Williams
The US Supreme Court is seen in Washington, DC, on May 4, 2020.
Saul Loeb | AFP | Getty Images

The Supreme Court late Thursday blocked the Centers for Disease Control from enforcing a federal moratorium on evicting renters during the Covid pandemic, a defeat for the Biden administration's effort to continue the moratorium despite an earlier signal from the court that the government's action lacked the proper legal basis.

Imposed in early August, the current moratorium was due to expire in early October. It was challenged by a group of landlords who argued that the CDC had no authority to impose such a restriction on its own.

They said the nation's landlords have been losing as much as $19 billion a month. "Congress never gave the CDC the staggering amount of power it claims," the landlords argued in their filing in the Supreme Court.

In an unsigned opinion, six Supreme Court justices agreed. "It would be one thing if Congress had specifically authorized the action that the CDC has taken. But that has not happened. Instead, the CDC has imposed a nationwide moratorium on evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination."

The opinion added, "It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts."

Congress imposed the first moratorium on evictions in March 2020 as part of the first coronavirus stimulus bill, the Cares act. When that expired, the CDC issued a moratorium of its own at the direction of President Donald Trump, which was extended through the end of July. Acting on a lawsuit brought by the landlords, members of the Supreme Court declined to block it in June, but signaled their concerns.

Four justices said they would have granted the request to block the moratorium. Brett Kavanaugh said he would have, too, but decided not to because at that point in late June it was to last only a few more weeks. He said only Congress could impose such a nationwide moratorium.

President Joe Biden said at first that the concerns expressed by the court meant the government did not have the authority to issue a new moratorium. But under pressure from Democrats, he directed the CDC to issue another one anyway in August, arguing that the new version was different because it applied only in counties with a high rate of Covid transmission.

Biden administration to mandate new, 60-day eviction moratorium
Biden administration to mandate new, 60-day eviction moratorium

Justice Department lawyers told the Supreme Court that the trajectory of the pandemic had changed "unexpectedly, dramatically, and for the worse" after the court weighed in on the issue in June. The seven-day average of daily new cases recently stood at more than 130,000, a nearly tenfold increase from the previous month.

The court's three liberals — Stephen Breyer, Sonia Sotomayor, and Elena Kagan — dissented from Thursday's order. While individual landlords said they have lost thousands of dollars in rental income, Congress has appropriated more than $46.5 billion to help pay back rent, Breyer said writing for the three.

"Compare that injury to the irreparable harm" from blocking the moratorium, Breyer said, with Covid-19 transmission rates spiking.

The question of the CDC's authority is an important one, and shouldn't be dealt with in such a summary fashion, especially given "how little we may presume to know about the course of this pandemic," he wrote.

A half-dozen states have eviction moratoriums of their own that are not affected by the Supreme Court's action — California, Minnesota, New Jersey, New Mexico, New York, and Washington. The District of Columbia also has a local moratorium.