The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier today, in Alabama Association of Realtors v. Department of Health and Human Services, the Supreme Court refused to block enforcement of the Centers for Disease Control nationwide eviction moratorium. But five justices indicated they believe the moratorium is illegal, because the CDC exceeded the authority granted to it by Congress. This indicates that, if this issue ever returns to the Supreme Court for a full hearing on the merits, a majority of justices are likely to strike down the moratorium.
Today's ruling came about after a badly flawed DC Circuit decision concluding that the moratorium was legal, and upholding the trial court's decision to stay its own order against enforcement of the moratorium. The district court had ruled that the CDC moratorium exceeded the agency's authority.
The plaintiffs in the case asked the Supreme Court to vacate the stay and reinstate the district court's original order, so that the moratorium does not continue while its legality is still being litigated. Today, a 5-4 majority of Supreme Court justices rejected the application to vacate the stay.
That is not unusual, as the Supreme Court is generally reluctant to interfere with lower-court determinations on such procedural matters. But it's notable that four conservative justices (Thomas, Alito, Gorsuch, and Barrett) indicated they wanted to grant the application to vacate the stay. That also shows they likely agree with the plaintiffs on the merits. Justice Brett Kavanaugh, who voted against vacating the stay, issued a concurring opinion, in which he explained that he believes the CDC order is illegal. Here it is, in its entirety:
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. See Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014). 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. See Barnes v. E-Systems, Inc. Group Hospital Medical & Surgical Ins. Plan, 501 U. S. 1301, 1305 (1991) (Scalia, J., in chambers) (stay depends in part on balance of equities); Coleman v. Paccar Inc., 424 U. S. 1301, 1304 (1976)(Rehnquist, J., in chambers). In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.
In other words, Kavanaugh thinks the CDC order is illegal, but voted to keep the stay in place for other reasons. As he notes, stays of a trial court order may sometimes be imposed even if the order is right on the merits. I will leave it to those more expert on stay issues than I am, to consider the question of whether Kavanaugh is right to conclude that equitable considerations justify maintaining the stay here.
In the last part of his opinion, Kavanaugh also warns that he is unlikely to uphold any extension of the moratorium past the current July 31 deadline, established by the Biden administration in its latest extension of the order. That latter point may well apply to future efforts to lift stays on lower court rulings against the CDC.
While there is a good chance the other four justices who voted to uphold the stay agree with the government on the merits (especially the three liberal justices), it is also possible one or more of them may have a view similar to Kavanaugh's (Chief Justice Roberts, who often votes with Kavanaugh in closely contested cases, is the most likely possibility). Thus, five votes is probably the floor for the number of justices who believe the CDC moratorium is illegal, not the ceiling.
The CDC eviction moratorium therefore survives, for now. But it is clearly on life support.
The eviction moratorium has been challenged in multiple ongoing cases, and has previously been the subject of eight rulings by federal trial and appellate courts, five ruling against it and three in favor. I have written about these cases and the issues they raise in numerous previous posts, including here, here, and here. From the start, my view has been that the order is illegal, and that upholding it would set a dangerous precedent. I held that view when the Trump administration first issued the order in September, and when the Biden administration later revived and extended it.
Today's Supreme Court decision is not a ruling on the merits of the order, and doesn't create any binding precedent on that point. But it does send a clear signal of what is likely to happen should the issue return to the Court in the future. For that reason, among others, I suspect the Biden administration may well choose to let the order expire on July 31, rather than extend it again.
For reasons I described here, however, that may not fully end all the legal battles over the order.
NOTE: The plaintiffs in some of the lawsuits against the eviction moratorium are represented by the Pacific Legal Foundation, where my wife works (though she is not part of the litigation team handling the issue). I myself have played a minor (unpaid) role in advising PLF on this litigation.
UPDATE: I have made minor additions to this post.