A mere three weeks after the application to vacate stay was filed, the United States Supreme Court has effectively ended the year-long row over the lawfulness of the federal Centers for Disease Control’s nationwide eviction moratorium (the “CDC Moratorium”).¹ On August 26, 2021, in a per curiam opinion joined by six members of the Court, with three members dissenting, the Court vacated the District of Columbia Circuit Court’s stay of enforcement pending appeal in Alabama Ass’n of Realtors v. Dep’t of Health & Human Servs., No. 21A23, 594 U.S. __, 2021 WL 3783142 (Aug. 26, 2021). The ruling, while technically not on the merits, rendered the District Court’s judgment, a summary judgment decision which held the CDC lacked statutory authority to impose the moratorium but was stayed pending appeal, immediately enforceable.² And as a practical matter, the opinion’s conclusion to deny stay relief on the grounds that “[i]f a federally imposed eviction moratorium is to continue, Congress must specifically authorize it” renders the CDC Moratorium immediately unenforceable in all of America’s courts, absent such Congressional authorization.
The Supreme Court previously declined to grant this relief when, on a 5-4 vote issued on June 29, 2021, Justice Kavanaugh wrote a concurring opinion which denied an earlier motion for stay relief, stating that only Congressional action could justify further extension beyond its then-July 31, 2021 sunset date.³
The CDC Moratorium
The CDC originally ordered its eviction Moratorium in September 2020 as a response to the COVID-19 pandemic, and extended it multiple times in light of the continuing state of emergency. We previously summarized the restrictions of the CDC Moratorium here, and highlighted several extensions of its reach here and here. In short, the CDC Moratorium subjected landlords to possible criminal and civil penalties if they proceeded with actions to evict certain “covered” residential tenants affected by COVID-19 for nonpayment of rent; it did not affect tenants’ underlying rental payment obligations or landlords’ ability to sue for unpaid rent.4
Prelude to the Supreme Court’s Alabama Ass’n of Realtors Decision
The Court’s decision is the culmination of hotly-contested litigations in multiple federal courts around the country that challenged the CDC Moratorium on various statutory and constitutional grounds. As summarized by the D.C. District Court in Alabama Ass’n of Realtors:
at least six courts have considered various statutory and constitutional challenges to the CDC Order. Most recently, the Sixth Circuit denied a motion to stay a district court decision that held that the order exceeded the CDC’s authority under 42 U.S.C. § 264(a), see Tiger Lily, LLC v. United States Dep’t of Hous. & Urb. Dev., No. 2:20-cv-2692, __ F. Supp. 3d __, __, 2021 WL 1171887, at *4 (W.D. Tenn. Mar. 15, 2021) (concluding that the CDC Order exceeded the statutory authority of the Public Health Service Act), appeal filed, 992 F.3d 518 (6th Cir. 2021); Tiger Lily, LLC v. United States Dep’t of Hous. & Urb. Dev., 992 F.3d 518, 520 (6th Cir. 2021) (denying emergency motion for stay pending appeal); see also Skyworks, Ltd. v. Ctrs. for Disease Control & Prevention, No. 5:20-cv-2407, __ F. Supp. 3d __, __, 2021 WL 911720, at *12 (N.D. Ohio Mar. 10, 2021) (holding that the CDC exceeded its authority under 42 U.S.C. § 264(a)). Two other district courts, however, declined to enjoin the CDC Order at the preliminary injunction stage, see Brown v. Azar, No. 1:20-cv-03702, __ F. Supp. 3d __, __, 2020 WL 6364310, at *9-11 (N.D. Ga. Oct. 29, 2020), appeal filed, No. 20-14210 (11th Cir. 2020); Chambless Enterprises, LLC v. Redfield, No. 20-cv-01455, __ F. Supp. 3d __, __, 2020 WL 7588849, at *5-9 (W.D. La. Dec. 22, 2020), appeal filed, No. 21-30037 (5th Cir. 2021). Separately, another district court declared that the federal government lacks the constitutional authority altogether to issue a nationwide moratorium on evictions. See Terkel v. Ctrs. for Disease Control & Prevention, No. 6:20-cv-564, __ F. Supp. 3d __, __, 2021 WL 742877, at *1-2, 10-11 (E.D. Tex. Feb. 25, 2021), appeal filed, No. 21-40137 (5th Cir. 2021).5
The majority of courts concluded that the CDC lacked statutory authority to pronounce such a sweeping restriction on landlords and property owners’ rights, but did not impose any nationwide remedies. The D.C. District Court, however, invalidated the CDC Moratorium nationwide.6 When the court stayed its order pending the government’s appeal, both the D.C. Circuit and Supreme Court initially upheld the stay. But Justice Kavanaugh’s concurring opinion expressed that in his view the agency had “exceeded its existing statutory authority” in the CDC Moratorium, and that “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July.”7
The Supreme Court Decides Alabama Ass’n of Realtors on a “Rocket Docket”
The CDC reinstated the CDC Moratorium on August 3, 2021. The plaintiffs filed an emergency motion in the D.C. District Court to again vacate the stay pending the federal government’s appeal, based upon Justice Kavanaugh’s concurrence. On August 13, 2021, the District Court denied that motion, ruling that it was still bound by the D.C. Circuit and Supreme Court’s prior stay orders.8 Plaintiffs sought emergency relief from the D.C. Circuit. In a per curiam decision issued on August 20, 2021, the D.C. Circuit denied stay relief, referring to its prior decision.9
Only 10 days passed between the CDC’s reinstatement and the District Court’s stay denial order. Only another 7 days passed between that order and the D.C. Circuit’s stay denial order. And only another six days passed between that order and the Supreme Court’s decision. A multi-staged rocket docket, indeed.
The Supreme Court’s Alabama Ass’n of Realtors Decision
The Supreme Court made quick work of the statutory question. The CDC justified its Moratorium on § 361(a) of the Public Health Service Act, which the Court concluded had specific language authorizing the agency to regulate such things as “inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles” in order to protect public health.10 The CDC Moratorium, by contrast, only had—at most—a very tangential connection to protecting public health by stopping landlords from evicting non-paying tenants who may end up homeless, who may cross state lines seeking shelter, and who may have been infected with COVID-19 and cause possible further spread of the disease. The Court concluded that the statute did not permit the sweeping authority enacted by the CDC in its eviction Moratorium.11
The CDC’s alternative justification that the statutory language granting the agency authority to adopt “other measures, as in [its] judgment may be necessary,” § 361(a), gained no more traction with the Court. The Court found that this language could only encompass measures consistent with the list of things previously referenced in the statute, and that expanding it to include such things as the nationwide CDC Moratorium results in a stretched interpretation that would provide the agency with boundless, unchecked powers. It concluded that Congress is expected to speak clearly when passing legislation that gives executive agencies broad powers, but had not done so in § 361(a) of the Public Health Service Act.12
Turning to the equities of the stay pending appeal, the Court noted that the CDC Moratorium saddled the plaintiffs and landlords all over the country with a risk of irreparable harm through lost rental payments with no guarantee they would be made whole. It further noted that government rental-assistance funds continued to be available to tenants affected by COVID-19, and that several months had passed since it previously upheld the stay.13 It concluded by holding that any further eviction moratorium could only be justified by new Congressional legislation that includes findings that the public interest supports such action.14
With the federal moratorium having come to a close, some states and municipalities have passed their own eviction moratoria.15 Challenges to them will not be governed by the Alabama Ass’n of Realtors Supreme Court decision, which addressed only the CDC’s authority. The local moratoria will no doubt be scrutinized for whether they can withstand challenges to their lawfulness, as well. Given that states and localities possess police powers that the federal government does not, such challenges will likely be unsuccessful, unless they can show that the promulgators lacked the requisite authority or failed to follow the required processes to enact or order their foreclosure moratoria. In those jurisdictions in which there are no longer any moratoria, it remains to be seen how quickly, or slowly, their judiciaries and civil officers will order and carry out evictions while the pandemic is still raging.
1. See “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19,” 85 Fed. Reg. 55292 (Sept. 4, 2020). As originally enacted, and after numerous extensions, the CDC Moratorium expired on July 31, 2021. See Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, § 502, 134 Stat. 1182, 2078-79 (2020) (extending the CDC Moratorium through Jan. 31, 2021); 86 Fed. Reg. 8020 (Feb. 3, 2021) (extending it through March 31, 2021); id. 16731 (March 31, 2021) (extending it through June 30, 2021); id. 34010 (final extension through July 31, 2021). On August 3, 2021, the CDC re-enacted it with a slight narrowing of its geographic scope, but no other material changes. See id. 43244 (Aug. 3, 2021).
2. Alabama Ass’n of Realtors v. Dep’t of Health & Human Servs., No. 20-cv-3377 (DLF), __ F.3d __, 2021 WL 1779282 (D.C. May 5, 2021).
3. Alabama Ass’n of Realtors v. Dep’t of Health & Human Servs., 141 S. Ct. 2320, 2321 (Mem.) (2021).
4. Terkel v. Ctrs. for Disease Control & Prevention, No. 6:20-cv-564, 2021 WL 742877, at *2-3 (E.D. Tex. Feb. 25, 2021), appeal filed, No. 21-40137 (5th Cir. 2021).
5. Alabama Ass’n of Realtors, 2021 WL 1779282, at *3.
6. Id. at *9-10.
7. Alabama Ass’n of Realtors, 141 S. Ct. 2320.
8. Alabama Ass’n of Realtors v. Dep’t of Health & Human Servs., No. 20-cv-3377 (DLF), __ F.3d __, 2021 WL 3577367, at *4-6 (D.C. Aug. 13, 2021).
9. Alabama Ass’n of Realtors v. Dep’t of Health & Human Servs., No. 21-5093, 2021 WL 3721431 (D.C. Cir. Aug. 20, 2021).
10. Alabama Ass’n of Realtors, 2021 WL 3783142, at *3.
11. Id. at *3-4.
13. Id. at *4.
15. Notable examples include New York state and the City of Boston. See “Governor Hochul Signs New Moratorium on COVID-related Residential and Commercial Evictions into Law, Effective Through January 15, 2022” (Sept. 2, 2021), copy located at https://www.governor.ny.gov/news/governor-hochul-signs-new-moratorium-covid-related-residential-and-commercial-evictions-law (last reviewed Sept. 7, 2021); Boston Public Health Comm’n, “Temporary Order Establishing an Eviction Moratorium in the City of Boston” (Aug. 31, 2021), copy located at https://www.bphc.org/onlinenewsroom/Blog/SiteAssets/Lists/Posts/AllPosts/BPHC%20Temporary%20Eviction%20Moratorium%20Order%208%2031%2021%20(003).pdf (last reviewed Sept. 7, 2021).