The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

If The Supreme Court Rules Against The Eviction Moratorium, When Would Holdover Tenants Actually Be Evicted?

During normal times, it can take months to evict tenants. Now with a massive backlog, it could take years.


By this point, it should be painfully clear that the Biden Administration's latest eviction moratorium is an effort to bide time. The President has admitted as much. Now, DOJ will oppose any adverse ruling, citing the risk of irreparable harm if tenants are evicted. For example, DOJ argues in a DDC brief:

Any injury to Plaintiffs caused by a temporary administrative stay is outweighed by the risk of illness and mortality if the moratorium targeting areas of high or substantial transmission is unnecessarily lifted at this moment when new cases are rapidly increasing due to the highly contagious Delta variant.

Eviction is not an immediate process. During normal times, it can take weeks, and event months to evict someone. The Dukeminier & Krier casebook (Chapter 7) lists several estimates. For example, New York requires 30 day notice, and the process can take 3-6 months. A study from the District of Columbia found the average time to evict was 114 days. In Massachusetts, the process could take as long as two years! All of these estimates are from normal times. Now, courts will have a massive, 18-month backlog. It will take forever for the clerk to file the cases, process them, issues summons, provide notice, schedule hearings, etc. Plus, states offer additional ways to challenging evictions based on hardships. I think the fears that millions of people will immediately be thrown on the street where they can spread COVID are entirely unfounded.

There is another property-related issue to address. The moratorium simply prevents landlords from removing tenants. It does not forgive the unpaid rent. Unless Congress takes action, millions of Americans will have massive debts they will never be able to repay. Their credit scores will be destroyed. And they will likely be unable to ever get a lease again, because of past failure to pay rent. This moratorium will have cataclysmic long-term effects for the housing market. The longer this process drags out, the more problems will be created.

I've been giving the Supreme Court vote count some more thought. It may not be 5-4. The Chief could be livid that the government is thumbing its nose at the Court. I also have to imagine that Justice Breyer, and maybe even Justice Kagan, are upset with this sort of cynical ploy. I almost wish the Court granted cert here. The shadow docket spares Acting SG the need to defend this policy live.