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Supreme Court rejects Biden administration's extension of eviction moratorium
Do you support or oppose the Court’s ruling?
By Eric Revell, Countable News
What’s the story?
- The Supreme Court on Thursday rejected the Biden administration’s effort to extend the federal eviction moratorium without authorization from Congress after the Court previously warned that a non-legislative extension would be unconstitutional.
- Biden previously said of his moratorium extension that the “bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster” but opted to have the Centers for Disease Control and Prevention (CDC) attempt to extend it anyway through October 3rd.
- In a June 29th ruling, the Court declined to take up a challenge to the eviction moratorium because, at the time, the CDC was planning to allow it to expire on July 31st. Justice Brett Kavanaugh wrote at the time, “In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”
- Thursday’s ruling broke 6-3 along ideological lines, with the conservative justices writing in an unsigned per curiam opinion, which took issue with the Biden CDC’s effort to interpret the law to justify requiring landlords to allow tenants to remain on the premises without paying rent:
“The applicants not only have a substantial likelihood of success on the merits — it is difficult to imagine them losing. The Government contends that the first sentence of §361(a) gives the CDC broad authority to take whatever measures it deems necessary to control the spread of COVID–19, including issuing the moratorium. But the second sentence informs the grant of authority by illustrating the kinds of measures that could be necessary: inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles. These measures directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself. The CDC’s moratorium, on the other hand, relates to interstate infection far more indirectly: If evictions occur, some subset of tenants might move from one State to another, and some subset of that group might do so while infected with COVID–19. This downstream connection between eviction and the interstate spread of disease is markedly different from the direct targeting of disease that characterizes the measures identified in the statute. Reading both sentences together, rather than the first in isolation, it is a stretch to maintain that §361(a) gives the CDC the authority to impose this eviction moratorium...
Indeed, the Government’s read of §361(a) would give the CDC a breathtaking amount of authority. It is hard to see what measures this interpretation would place outside the CDC’s reach, and the Government has identified no limit in §361(a) beyond the requirement that the CDC deem a measure “necessary.” Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable? Require manufacturers to provide free computers to enable people to work from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work? This claim of expansive authority under §361(a) is unprecedented. Since that provision’s enactment in 1944, no regulation premised on it has even begun to approach the size or scope of the eviction moratorium...
It is indisputable that the public has a strong interest in combating the spread of the COVID-19 Delta variant. But our system does not permit agencies to act unlawfully even in pursuit of desirable ends. It is up to Congress, not the CDC, to decide whether the public interest merits further action here. If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.”
- Justice Stephen Breyer was joined by Justice Sonia Sotomayor and Justice Elena Kagan in dissent. Breyer’s opinion concluded that the CDC’s extension of the moratorium should stand until the Court grants the matter a full hearing and argument:
“The public interest strongly favors respecting the CDC’s judgment at this moment, when over 90% of counties are experiencing high transmission rates. That figure is the highest it has been since at least last winter. It was in the single digits when we considered the CDC’s previous moratorium order and denied applicants’ earlier motion.
On applicants’ last trip to this Court, they argued that the “downward trend in COVID–19 cases and the effectiveness of vaccines” left “no . . . public-health rationale for the [CDC’s then-operative eviction] moratorium.” These predictions have proved tragically untrue. Today they show just how little we may presume to know about the course of this pandemic.
Applicants raise contested legal questions about an important federal statute on which the lower courts are split and on which this Court has never actually spoken. These questions call for considered decisionmaking, informed by full briefing and argument. Their answers impact the health of millions. We should not set aside the CDC’s eviction moratorium in this summary proceeding. The criteria for granting the emergency application are not met. I respectfully dissent.”
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