Supreme Court

At Least 5 Justices Seem To Think the CDC's Eviction Moratorium Is Illegal. SCOTUS Left It in Place Anyway.

Brett Kavanaugh, who provided a crucial fifth vote, said he agrees that the CDC does not have the authority to override rental contracts.


The Supreme Court yesterday declined to remove a stay on a decision against the nationwide eviction moratorium that the Centers for Disease Control and Prevention (CDC) imposed in response to the COVID-19 pandemic. A concurring statement by Justice Brett Kavanaugh nevertheless indicates that a majority of the Court thinks the CDC's order, which was recently extended and is now scheduled to expire at the end of July, exceeds its statutory authority.

On May 5, Dabney Friedrich, a federal judge in Washington, D.C., ruled that the moratorium, which applies to tenants who claim financial hardship, is not authorized by the Public Health Service Act, the statute that the CDC cited as the basis for its order. "Because the plain language of the Public Health Service Act…unambiguously forecloses the nationwide eviction moratorium," Friedrich wrote, "the Court must set aside the CDC Order, consistent with the Administrative Procedure Act…and D.C. Circuit precedent."

Friedrich granted a stay of her order pending the government's appeal, and on June 2 the U.S. Court of Appeals for the D.C. Circuit declined to lift that stay. The plaintiffs—landlords, real estate companies, and trade associations—appealed that decision to the Supreme Court.

Four justices—Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett—thought the stay should be lifted, meaning that Friedrich's decision against the CDC would take effect immediately. Chief Justice John Roberts and four of his colleagues—Stephen Breyer, Elena Kagan, Sonia Sotomayor, and Brett Kavanaugh—disagreed. But Kavanaugh, whose vote against lifting the stay was crucial, said he thought Friedrich was right.

"I agree with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium," Kavanaugh wrote. "Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application to vacate the District Court's stay of its order….In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31."

Since the CDC says it does not plan to further extend the moratorium, it is not clear whether the order's legality will ever be definitively resolved. The D.C. Circuit differed with Friedrich, saying "the CDC's eviction moratorium falls within the plain text" of the Public Health Service Act. But three other federal judges and the U.S. Court of Appeals for the 6th Circuit have agreed that the moratorium is legally invalid.

The Public Health Service Act authorizes the secretary of health and human services to issue regulations that "in his judgment are necessary" to prevent the interstate spread of "communicable diseases." One of those regulations delegates a similar authority to the CDC's director.

The statute mentions these examples of disease control measures: "inspection, fumigation, disinfection, sanitation, pest extermination," and destruction of infected or contaminated "animals or articles." It then refers to "other measures" deemed "necessary," which according to the CDC encompasses pretty much anything.

Friedrich, two other federal judges, and the 6th Circuit concluded that the CDC was wrong about that, saying "other measures" must be similar in kind to the specific examples. Another federal judge ruled that even Congress does not have the authority to impose a moratorium like the CDC's, because forcing landlords to continue housing tenants who fail to pay their rent exceeds the federal government's power to regulate interstate commerce.

The CDC's justification for the moratorium, which it first imposed in September, is that evicted tenants might become homeless or move in with other people, thereby increasing the risk of virus transmission. That malleable rationale, coupled with the CDC's broad reading of the Public Health Service Act, implies that the agency has boundless authority to dictate how Americans can behave and interact with each other, provided it thinks the edicts are "reasonably necessary" to prevent the interstate spread of "any" communicable disease.

South Texas College of Law professor Josh Blackman is not impressed by Kavanaugh's explanation for leaving the CDC's order in place. "The application [to remove the stay] was filed on June 3," he writes in a Volokh Conspiracy post. "The response was due on June 10. The application has been pending for 19 days. It did not take 19 days to write a one-paragraph concurrence. No one wrote a dissent in response. The Court was no doubt hoping Biden would decline to extend the moratorium so the case would go away. But the administration did extend it. And with 31 days remaining on the order,  Justice Kavanaugh now says there are only a 'few weeks' left….Therefore, he will decline to grant relief. If the Court moved with alacrity, the rule of law would have already been restored."

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  1. So once again the court shirks is responsibilities in order to avoid politically continuous issues (even if you agree with the liberal judges, I hope you see how that's a problem). Not surprising, since Roberts has been doing that for years, but still disappointing. Is Kavanaugh worried about court packing or something?

    1. Kavanaugh is going to turn out to be nothing but a Roberts clone who is more worried about the politics of interpreting law than the law itself.

      1. All those #metoo protests and confirmation shenanigans had the desired effect.

        1. Pretty much this. Establishment left's aversion therapy for Supreme Court Justices.

          Thomas is the only one who managed to go through the ordeal with his psyche intact.

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  2. You know the CDC will extend it again. Kavanaugh is a prick.

    1. He has become fairly disappointing the last year and a half, moving to D.C. has effected him greatly.

      He also turned down the review of Bostock that he authored in the bathroom case.

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  3. Extension in 5... 4...

    1. California not only extended it, but they have a 5 billion dollar rental fund to help landlords that they are slow playing release of.

  4. whats the purpose with the court if they are just going to roll over. let just do what we want

    1. It seems that, regardless of the composition of the court, they simply can't avoid ruling in favor of government tyranny over the rights of individual citizens in most cases.

      1. Move the USSC out of D.C. It's too corrupting of an influence.

        1. And on top, there is no real need for the court to be in DC.

  5. This conservative supermajority is out of control.

    1. How many liberals who loudly protested Kavanaugh's nomination have been overwhelmingly pleased with his tenure on the bench?

      1. How many Trumpers who keep bleating "but muh judges!" whenever asked about something Trump actually accomplished are finally having to reconsider whether the orange second coming of Christ was real.

        1. "muh" is played out, you just look like an ass using it now.

          Also fuck off leftie shit.

          1. Please, tell me more about my political affiliations. If I'm not on your team I must be on the other one or as good as helping them, right? Let me see if I have the current lingo figured out "Sure, Biden Kavanaugh isn't great but at least no MEEN TWEATS!" Sure, Trump may have fucked up in every quantifiable way but what about all the meaningless unquantifiable ways? And the other guy was/is/will be so much worse! There's really no choice but to choose the LeSsEr eViL and yeah, sure, he may have been a lifelong democrat, fat cat, swamp creature from New York with a half century resume as a fly-by-nite con man and serial molester but when I saw him on Fox News he said the word "America" a lot! He really believes in hard working red blooded Americans like me and pastor says he's the only thing standing between us and the LGBTQCRTBLMWTFBBQ apocalypse.

            Oh please. Take your seethe elsewhere. You shits deserve everything you get at this point. You think this isn't the future you chose because you were turning the steering wheel to the right but the car went left. You feel justified and righteous, but this bridge has water on both sides and the result is going to be the same, because doing things the right way is hard.

            1. Well that was a load of slimy lefty agitprop, poorly disguised as the righteous indignation of the common man.

              Who the fuck do you imagine that your fooling?

            2. Yet all the bad things come from leftist decisions and leftist policies.

            3. And yet still the best president America has had for a while...

        2. I'm not a Trump supporter so I don't know. What I can tell you is the furor over Kavanaugh has died down and at least some of that has to do with the fact that he's an authoritarian piece of shit like Roberts.

          His confirmation hearings were enough to scare him off making any real controversial rulings that might piss off anyone left of Susan Collins and risk having protesters revive #metoo on the front steps of the Court.

          1. Straight guarantee that Roberts took him aside the first day and "suggested" that he make no waves.

        3. Trump appointed over 200 judges, and the vast majority of them are not Brett Kavanaugh

      2. None. They aren't pleasable people.

  6. So it is OK to violate the constitution, but only until the end of July?
    Where do I go to withdraw my consent?

    1. But it's only ok to violate it until the end of July because the government can't get it's shit together. Just give them a little more time and some lenient rulings and they'll pull it together.

    2. Serious question. Does this create a legal precedent of sorts that essentially says that the government can violate the rights of citizens and/or ignore the law/constitution as long as it does so for only a 'reasonable' amount of time?

      1. Ima say "Yes". 8-(

      2. Technically, no.


        They did the same sort of crap in local courts, too. Appeals judges stayed a ruling in a case here that allowed restaurants to open in defiance of Newsome's December edict, the appeals judges knowing full well that by the time it worked its way through the appeals process it would be moot either way.

        I will note, however, that the next day was when every restaurant in the town I live in reopened, indoors and out, with signs out front saying "This is a peaceful protest" or occasionally "Welcome to the French Laundry." But what else do you do? These guys got us. Nothing you can do that doesn't take months, even IF you spend ridiculous amounts of money on lawyers.

      3. Yes, this sets the precedent that the government can cancel private contracts if it chooses. It also sets completely new levels of precedent for expropriation of private property for "the public good". Just like Obamacare set the precedent that the government can force you to purchase goods.
        The last decade has been an absolute disaster when it comes to giving government precedent for new tyrannical powers. If we haven't had an outright societal and economic collapse, the USA will be completely unrecognizable in a few years if this trend continues.

      4. Wait until you find out about pretextual stops.

  7. It is not the ideologically correct decision, but it is a 'reasonable' one. The majority made it clear that if the issue comes back to the court again, CDC will lose. And now everyone is on notice that the eviction moratorium really is ending at the end of July so all those affected can plan accordingly.

    1. Gods, you're stupid.

      1. I actually think he is right here.... hope.

        1. So 18 months of rights violations are okay because those violations are ending soon?

          1. In Pedo Jeffy’s tiny little mind, yes.

          2. no... just pointing to the obvious practical implications here. Doesnt make it right and it def wasnt his job to make that call BUT if the decision contains its own sunset clause in the ruling its not the worst way it could have gone if ... say... there was another RBG on the court.
            The real danger is if this situation finally pops up again and the composition of the court changes - which is a possibility. And this is the same insidious problem inherent in all SCOTUS punts

    2. fatty jeff bends over for the rules once again.

      1. Among other things.

    3. It's reasonable that an unconstitutional use of administrative power is left in place because Congress can't figure out how to distribute funds efficiently?

      Government incompetence, the gift that keeps on giving.

      1. no its not - but scotus seems to be dancing on the head of a pin and they prob dont want a bunch more nazgul to join them trying to stay on that pin. Not sayin its right but I can see how that explains their actions. Look - has the supreme court been a bastion of integrity and courage lately? It would be nice to expect more out of them but it is what it is. Hopefully they find some balls after the midterms bring in a Red Team majority and they can not have to worry about a bunch (more) partisan hacks being stuffed into Scotus by the Dems

        1. Maybe when they had the chance to intercede in obvious unconstitutional action on election laws they should have shown some spine.

      2. It is reasonable that an unconstitutional use of administrative power, which nevertheless benefitted a lot of people, is unwinding in an orderly and predictable way to permit everyone to prepare accordingly for when the program does come to a final end.

        1. And there's the true failing of utilitarianism. You'd gladly trample the Constitution in the name of "order and predictability".

    4. The majority made it clear that if the issue comes back to the court again, CDC will lose.


    5. LOL. Jeff continues to prove he doesn't care about individual rights if he deems a policy as "reasonable".

      yes, takings from landlords is totally reasonable. Yet you claim to not be a leftist.

    6. So, Chem, given SCOTUS's statement, all those harmed by not getting full rent collection can now sue the government (CDC) since it didn't have the authority in the first place?

  8. I read this as a taking of property. An essential part of property ownership is the ability to rent or lease. The CDC has taken rental income from property owners. The government has neither paid the rents nor - at the state level - excused property taxes.

    Why is it that we STILL can't make tenants pay their rent, but we have schools and businesses open?

    1. Because John Roberts and Brett Kavanaugh are incorrigible statists?

      1. Now now. John Roberts is a statist because he was appointed by W. But Brett Kavanaugh is a REAL MURICAN because he was nominated by TRUE PATRIOT TRUMP. What are you, a Democrat or something?

        1. No, that would be you.

    2. Presumably landlords are also not excused from having to perform maintenance and upkeep to keep the properties livable

      Ultimately, by keeping the moratorium in place for so long they've screwed the tenants too, since technically they still owe all back rent. Since few, if any, of them can afford 18 months of back rent they are all getting evicted anyway, and this won't look good to the next person they want to rent from

      1. In Arizona I've been told by my rental management group that you are allowed to do things such as disable major appliances if rent is stopped, this includes A.C. I've never looked it up as I've never had to evict yet, but sounds like a fair trade.

        1. Can you turn on major appliances like the cattle prod that pushes them out the door when they don't pay rent? Asking for a friend...

        2. Hopefully that is the case in your area, in MN, the deepest pit in hell, they would crucify you for any of those actions,

        3. Don't do that. This is absolutely not true in Arizona. Landlords can't shut off utilities until they have obtained a writ of restitution, the fancy name for the court order authorizing them to kick the tenant out. If they shut off utilities prior to that, the tenant may be able to recover 2x the monthly rent against the landlord if they figure out they can sue for that. ARS 33-1364(C)-(D), -1367, -1368(D), -1374.

          This isn't legal advice, but generally, rental management companies don't actually know the law under Arizona's residential landlord-tenant act. Don't take legal advice from them.

        4. Weld the doors shut from the outside with your thieving, parasite squatter "tenant" in it and set the place on fire for insurance money. It may be insurance fraud, but there is absolutely nothing morally wrong with defending your property using deadly force from thieves. Doubly so when the government will side with the squatters instead of their actual job of protecting private property and the sanctity of contract.

    3. The government is working on a plan to pay off the back rent. You're allowed to steal shit as long as you pay it back in a year or so. And for those landlords who can't afford to go a year or so without any rental income, well, fuck you, you should have run your business better.

      1. Nah, government will pay off the back rent, but they'll require landlords to accept some terms that say you won't evict the people for some period of time or something as a condition of getting your bennies.

        Once again the (future) taxpayer loses.

        1. And current responsible renters lose too (as rents are shooting through the roof for those who actually have pride and morality and actually pay rent). As is the massive increase in the cost of purchasing a new or used home as inventories are low by millions of housing units that should have gotten evicted and foreclosed on (many of which would have gotten existing tenants kicked out it even without covid affecting their employment).

  9. STUPID Kavanaugh. DO YOUR JOB!!!!

    "In my view, clear and specific congressional authorization"
    NOOOOOOOOOOOOO.... 'clear and specific' Constitutional Authorization ****IS**** your JOB dumb*ss.

    1. That day the 3-branches of USA government merged into a National Socialist invasion (i.e. The Nazi's are HERE).

  10. The court 'declined' to 'remove' a 'stay' on a 'decision against' the nationwide eviction 'moratorium'. Is this a quintuple negative?

      1. Definitely not.

    1. If you count 'eviction' it's a hextuple negative.

  11. "I think it's illegal, but what the heck, it's only going to last for a few more weeks.
    Disappointing ruling from Kavanaugh.

    1. True! hopefully we wont have to get used to that and he finds his integrity.

  12. Looks like the Robert's court looked at how the Venezuelan Supreme Court now operates and thought that it was a good idea.

    1. Real racist Jeff agrees.

  13. And in a few years they're going to be wondering why the Supreme Court has a favorability rating no better than Congress, the President, and child-molesters.

    1. That's really an unfair comparison. Child molesters are *way* more popular than the government.

  14. "Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application to vacate the District Court's stay of its order"

    "We're going to abolish slavery *eventually*, but give us time to arrange a more orderly distribution of those folks."

  15. This moratorium is crushing small landlords dependent on their couple of properties for their subsistence; and government eventually paying it, like in California, will be too little too late for the small landlords and patently unfair to tenants that paid their own damn rent.

    The law, contract rights, property rights, government overreach be damned Trumpy the Clown, aka Obama's Third Term, got his Justices.

  16. Sheesh, it's only the law, as if that matters...

    1. The rule of law is a myth. We have had rule of man for a century or more at least.

      This might be a step further though. Now SCOTUS is saying, yeah we know this was illegal what government did here, but we'll allow it for just a little while longer. I'm not aware of that really happening before.

      It's really right up there with, yeah we know the law says this is a penalty, but we in our infinite wisdom think this is really more of a penal... er... tax... yeah... penaltax!

  17. Sounds like property owners have had their assets taken away by State and Federal governments. 85% of people were not affected by covid, they continued to work or recieve a check for doing nothing. Then the massive give away through unemployment spiffs. And of course the big bumps from the Feds here and there. Were there a few people who would have been evicted? sure. Handle them on a case by case basis. Way too many people are taking advantage of the system. This schouldn't even be at the SC.

  18. How long before the CDC declares the "Great Leap Forward" and tries to confiscate all private property?

  19. At Least 5 Justices Seem To Think the CDC's Eviction Moratorium Is Illegal. SCOTUS Left It in Place Anyway.
    If the Supreme court won't uphold the US Constitution, what is the point of it? Just let the dictators have their way.

    1. THIS is the question... but it has been obvious that this has been the question for some time before this particular decision.

  20. Have we figured out that the Supreme Court rulings are just a big circle jerk yet? They must draw straws on who's going to vote against liberty and come up with their arbitrary reasoning for supporting that decision.

    The federal government promised they'd stop violating people's private property rights next month seems a really sorry reason not to intercede.

    Remember how quickly the courts reacted to the fake charges against Trump? Fun times. What changed?

  21. Why even care what the SC says anymore? Legislative, executive, judicial, they are all incompetent, corrupt, and selfish. Somebody secede already.

  22. How is this even up for discussion? Of course it's illegal. Both tenant and landlord signed a contract explicitly stating each party's obligation. The government cannot negate a contract entered in voluntarily by 2 parties. Neither can the government expropriate private property and turn it into free public housing.
    And the awful effects of this are in plain sight. Double digit annual rise in cost of housing just about everywhere whether for renters or buyers on top of already high housing prices. Massive shortage of housing units because millions of units that should have become available via foreclosures and evictions are not on the market. Shortages of everything else as when people no longer have to work producing goods or be homeless, they'll just choose to not work and considerably less goods are produced and available for purchase. Landlords are now terrified of renting out their units and will convert them to AirBNBs or massively raise prices to counter the risk of newly legalized squatting. Potential new landlords, homebuilders, mortgage companies will not enter the market, making housing supply even lower.
    Let's face reality, we are a communist country now on par with the USSR or Venezuela. My hat's off to the chicom government for producing a not very dangerous biological weapon that played the now destabilized USA like a fiddle as by far the worst weapon of psychological warfare in history. What is happening to the US is fucken disgraceful.

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  24. I used to think Kavanagh would be solid on the 2nd Amendment, but now I shudder to see what comes out of the shall issue New York carry case.

    I expect a "compromise" that doesn't really provide any rights.

    1. That will only provide the most focused relief that will allow all sorts of other bad laws to be made and then those have to work their way up to SCOTUS for consideration.

      This seems to be Roberts' MO.

      I think he believes in a 'living constitution' and this is how he achieves it - while he's there he rules so narrowly that it allows other abuses to be created and when they finally come up the chain the court composition has changed and the progressive judges make the sweeping rulings [for society's own good]. He is keeping the conservative constitutional judgment in check until the court can be stacked enough that they can change society like a superlegislature.

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