Five U.S. Supreme Court justices agreed with plaintiffs that the Centers for Disease Control and Prevention (CDC) overstepped its bounds by issuing a nationwide eviction moratorium — but the court still stopped short of negating the ban.
It’s the latest turn in a saga that has stretched on as the housing industry has fought a ban that has, for now, kept tenants in their homes but cost landlords across the country more than $13 billion per month in unpaid monthly rents, according to the plaintiffs, the Alabama Association of Realtors. National Apartment Association President Bob Pinnegar said earlier this month that “each passing month of the eviction ban “escalates the risk of losing an ever-increasing amount of rental housing” and “leave[s] renters with insurmountable debt and housing providers holding the bag.”
Lawmakers have approved $46.5 billion in federal assistance for landlords, although distribution of the funds has been sluggish.
The Supreme Court’s 5-4 decision to uphold the ban isn’t the first time a court has found the CDC-imposed moratorium invalid. U.S District Judge Dabney Friedrich overturned the ban in May, finding that the CDC exceeded its existing statutory authority in levying the moratorium. The Department of Justice, however, immediately appealed her decision, leading Friedrich to grant an emergency stay.
The case that made it to the Supreme Court is a suit stemming from that stay, with the Alabama Association of Realtors asking the high court to vacate it and immediately end the moratorium. But while five justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh — indicated their concurrence with Friedrich and the realtors, the Supreme Court ultimately found that it’s essentially too late to go back and change anything.
“Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application to vacate the District Court’s stay of its order,” wrote Kavanaugh, who effectively served as the deciding vote to uphold the ban.
He joined Chief Justice John Roberts and the Supreme Court’s three liberal justices (Stephen Breyer, Sonia Sotomayor and Elena Kagan) in keeping the moratorium intact.
The Supreme Court did, however, expressly stipulate that should the CDC wish to extend the moratorium any further, it would need to do so with the approval of the legislative branch.
“In my view,” Kavanaugh wrote, “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”