On June 29, 2021 the Supreme Court issued its decision in Alabama Association of Realtors, et al. v. United States Department Of Health And Human Services, et al., 594 U.S. ___ (2021). The Court denied the D.C. District Court’s stay of the Centers for Disease Control and Prevention’s (CDC) nationwide moratorium on evictions during the COVID-19 pandemic. Justices Thomas, Alito, Gorsuch, and Barrett would have granted the application. Justice Kavanaugh concurred in the judgment. He agreed with the District Court, which held that the CDC exceeded its existing statutory authority by issuing a nationwide eviction moratorium. But since the CDC plans to end the moratorium on July 31, 2021, he voted to deny the application. Kavanaugh wrote individually to clarify that new legislation would be required to extend the moratorium beyond July 31. Kavanaugh agreed with the district court that the eviction moratorium is unlawful but refused to disturb the district court’s stay of its own order. Ultimately, we now know that there would be five votes to undo a future, similar regulation without Congressional action.
Previously, the district court concluded the Public Health Service Act, 42 U.S.C. §§ 201 – 300mm-61, did not grant the CDC the legal power to impose a nationwide eviction moratorium. The Court explained that the first clause of section 264(a) grants the CDC, with approval of the Secretary of the Department of Health and Human Services, authority to make and enforce regulations to prevent the interstate or international spread of disease. But the Court interpreted this authority as being tied to, and narrowed by, the second clause empowering the CDC to regulate “sources of dangerous infection to human beings.”
The CDC moratorium went into effect on September 4, 2020 and was extended to July 31, 2021. The CDC moratorium applied to all residential properties nationwide. Violators of the moratorium faced potential criminal penalties, including a fine of up to $250,000, one year in jail, or both, and a maximum fine of $500,000 for organizations. As this article is written, and the Delta Variant continues to spread, the White House is imploring that Congress act and pass legislation. For any questions, please contact Deborah Gallo, Esq. at firstname.lastname@example.org.