On August 26, 2021, the U.S. Supreme Court decided Alabama Ass’n of Realtors v. Department of Health and Human Services, holding that it strains credulity to read the statute on which the federal Centers for Disease Control (“CDC”) depends, 42 U.S.C. § 264(a), as giving that CDC the authority to impose a nearly nationwide ban on evicting tenants from residential rental properties to slow the spread of COVID-19.
In March 2020, the Coronavirus Aid, Relief, and Economic Security Act prohibited the eviction of tenants from certain residential properties for 120 days. When that statutory moratorium expired, the federal Centers for Disease Control imposed a broader eviction ban, and it renewed the ban after it was set to expire. Alabama realtors sued, claiming that the CDC lacked legal authority to ban evictions. The U.S. District Court for the District of Columbia agreed and enjoined the moratorium, but stayed its ruling pending appeal. The D.C. Circuit agreed that the stay pending appeal was appropriate, and in July the Supreme Court declined to disturb the stay. Four Justices noted that they would have vacated the stay, and a fifth (Justice Kavanaugh) agreed with them that the moratorium likely was unlawful, but found it inappropriate to vacate the stay given that the moratorium was set to expire on July 31. Three days after the moratorium expired, however, the CDC reimposed it. “Apart from slightly narrowing the geographic scope, the new moratorium is indistinguishable from the old,” covering “at least 80% of the country, including between 6 and 17 million tenants at risk of eviction.” The plaintiffs asked to vacate the stay, but the district court concluded that it was powerless to do so in light of the D.C. Circuit’s earlier decision, and the D.C. Circuit again declined to lift the stay.
The Supreme Court vacated the stay per curiam, by a 6–3 vote. As a result, the injunction will take effect while the district court’s original grant of summary judgment is appealed. The Court stated that “it is difficult to imagine” how the plaintiffs could ultimately lose the appeal. Although the Public Health Service Act authorizes the surgeon general to regulate “to prevent the introduction, transmission or spread of communicable diseases,” the statute also identifies the sorts of measures that the CDC might impose — measures such as quarantine and fumigation. An eviction moratorium, in contrast, does not involve “identifying, isolating, and destroying the disease itself,” but has only a “downstream connection” with the spread of disease. Moreover, said the Court, “the sheer scope of the CDC’s claimed authority” makes it dubious. If the CDC can ban evictions to slow disease spread, the Court explained, “it is hard to see what measures” would be “outside the CDC’s reach” if it thought they would slow disease. The Court therefore held that, “if a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.” The Court emphasized that Congress had not acted to reimpose a moratorium, but had instead authorized rental assistance. Moreover, the right of a property owner to exclude is “one of the most fundamental elements of property ownership.”
The opinion of the Court was per curiam. Justice Breyer issued a dissenting opinion, joined by Justices Sotomayor and Kagan.