Bench Memos

Law & the Courts

The Court Sets Things Right on the Eviction Moratorium

President Joe Biden and Vice President Kamala Harris receive an update on the fight against the coronavirus pandemic as they visit the Centers for Disease Control and Prevention (CDC) in Atlanta, Ga., March 19, 2021. (Carlos Barria/Reuters)

Earlier this summer, I criticized Justice Kavanaugh for refusing to vacate a stay of a district court order striking down the Biden administration’s moratorium on evictions, regardless of what he acknowledged in an odd concurring opinion to be its illegality. Last night, after the issue returned to the Court, a majority including Kavanaugh set things right by vacating a similar stay.

The underlying issue was a power grab by the CDC. In 2020, the agency imposed a moratorium on evictions in residential properties across the country after a narrower moratorium in response to the pandemic authorized by the CARES Act for a period of 120 days expired. Even before its expiration, the statute had applied only to properties that participated in federal assistance programs or were subject to federally backed loans. A second statute, the Public Health Service Act of 1944, gave no support to the CDC either. It applied by its terms to identifying and destroying disease directly by such measures as inspection and disinfection. It had never before been invoked to justify an eviction moratorium and was rarely invoked at all.

When the Alabama Association of Realtors filed an emergency motion in June, the moratorium remained in place due to one vote — Kavanaugh’s — and he allowed it only because the moratorium was set to expire a few weeks later, on July 31, even while making it clear specific congressional authorization was necessary for any further extension.

No such authorization followed from Congress, and the Biden administration brazenly defied the Court by reimposing the moratorium three days after it expired, with no difference from the earlier moratorium except to be slightly narrower in the geographic area it covered. This despite President Biden’s admission that most scholars he consulted warned it was “not likely to pass constitutional muster.” Some, apparently including Laurence Tribe, suggested he take the risk anyway since it would buy time. So much for the rule of law.

After the issue returned to the Court, the Biden administration received an unequivocal smackdown last night. In an unsigned opinion, the Court found the applicants “virtually certain to succeed on the merits.” It called the CDC’s stretching of the Public Health Service Act “unprecedented” and “a wafer-thin reed on which to rest such sweeping power.”  The agency went so far as to impose criminal penalties of up to a $250,000 fine and one year in jail for violators. The administration, the Court made clear, disregarded both the human cost of its actions and a foundational principle of law: “Many landlords have modest means. And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership — the right to exclude.”

The vote was 6–3 along familiar ideological lines, with not only Kavanaugh, but also Chief Justice Roberts, now forming a majority. Justice Breyer wrote a dissent joined by the two other liberals that dealt mostly with policy arguments about housing and the pandemic. The eviction moratorium is now dead. But the lawlessness of the Biden administration’s position, and the Breyer dissent, which amounts to an op-ed on public-health policy, should leave no doubt in anyone’s mind about the contemporary Left’s approach to the Court.

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