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Supreme Court Strikes Down Biden Eviction Moratorium

The Supreme Court Building in Washington D.C., August 5, 2021 (Brent Buterbaugh/National Review)

The Supreme Court struck down the Biden administration’s eviction moratorium in a 6-3 decision on Thursday.

The Centers for Disease Control and Prevention issued the moratorium earlier this month to cover counties with “high” or “substantial” coronavirus spread, which as of Wednesday included the vast majority of counties in the U.S. The order was issued after a previous nationwide moratorium instituted during the Trump administration expired on July 31.

“It would be one thing if Congress had specifically authorized the action that the CDC has taken. But that has not happened,” the Court majority wrote in an unsigned opinion.

The majority held that the statute the CDC cited when implementing the moratorium, section 361(a) of the Public Health Service Act, does not grant the CDC authority to halt evictions.

“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 continued. “It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.”

Justice Stephen Breyer argued in a dissent that “it is far from ‘demonstrably’ clear that the CDC lacks the power to issue its modified moratorium order.” Breyer’s dissent was signed by fellow liberal Justices Elena Kagan and Sonia Sotomayor.

President Biden acknowledged earlier this month that the moratorium would likely be struck down.

“The bulk of the constitutional scholars say it’s not likely to pass constitutional muster,” Biden said of the new moratorium on August 3. “But at a minimum, by the time it gets litigated, it will probably give some additional time while we’re getting that $45 billion out to people who are in fact behind in the rent and don’t have the money.”

A federal judge left the moratorium in place on August 13 following a challenge from landlords affected by the eviction ban, saying her “hands are tied” by a previous court ruling on the matter. The D.C. Circuit Court of Appeals subsequently declined to hear a challenge to the moratorium, after which the moratorium was challenged at the Supreme Court.

In a June ruling, the Supreme Court allowed the previous eviction moratorium to remain in place until July 31, with Chief Justice John Roberts and Justice Brett Kavanaugh joining the three liberal justices for a majority decision. Kavanaugh wrote in his opinion that the CDC “exceeded its existing statutory authority” in issuing the moratorium, but allowed the moratorium to remain in place until its expiration.

“Clear and specific congressional authorization (via new legislation) would be necessary” to extend the moratorium, Kavanaugh wrote at the time.

Landlords who spoke with National Review earlier this month reported being owed thousands of dollars in rent since the eviction moratorium was instituted in 2020.

“If there’s going to be a tsunami of anything, there’s a tsunami of debt out there,” said Bob Pinnegar, president and CEO of the National Apartment Association.

Send a tip to the news team at NR.

Zachary Evans is a news writer for National Review Online. He is a veteran of the Israeli Defense Forces and a trained violist.

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