On June 29, 2021, by a 5-4 majority the Supreme Court declined to vacate the CDC eviction moratorium. The majority decision did not opine on their reason for declining to vacate the stay, however Justice Kavanaugh, who joined the majority, drafted a concurrence. Justice Kavanaugh joined the majority because of his opinion that the remainder of the moratorium, which is scheduled to end on July 31, 2021, is brief and “will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds” by the Department of the Treasury. However, he noted that he did agree with the petitioners’ opinion that the CDC had exceeded its authority in issuing the foreclosure moratorium and cautioned that any extension of the stay beyond July 31, 2021, would, in his opinion, require “clear and specific congressional authorization (via new legislation).”
Kavanaugh’s statement is significant as it indicates that, under the right circumstances, he would likely join the minority justices (Thomas, Alito, Gorsuch, and Coney-Barrett) in denying future moratoriums of this type. The future implications of this decision are unknown at this time, however Kavanaugh’s statement could be read as an implicit invitation to challenge future foreclosure and eviction stays issued by Federal agencies without the explicit authorization of Congress. For any questions regarding this announcement please contact Richard O’Brien, Esq. at firstname.lastname@example.org or Deborah Gallo, Esq. at email@example.com.