The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier tonight, the Supreme Court issued a 6-3 ruling against the Biden Administration's revised version of the Centers for Disease Control Eviction moratorium. While the ruling is technically a procedural one, not a final decision on the merits of the case, it nonetheless makes clear that a majority of justices believe the new version of the moratorium is illegal. In addition, the Supreme Court's reinstatement of the district court ruling against the moratorium may well have nationwide consequences, not limited to the specific parties in this case.
This result was predicted by many legal commentators, including myself, because the revised moratorium had virtually all the same legal weaknesses as the original version first adopted by the Trump administration, and later extended multiple times under Biden. A majority of justices had already signaled they believed the original moratorium was illegal, in a procedural ruling issued in June (though at that time they nonetheless refused to lift the stay preventing the district court's judgment from going into effect). Even President Biden admitted that the revised moratorium was unlikely to survive judicial review, but decided to issue it anyway.
Here is the Supreme Court majority's explanation of why the moratorium is illegal:
The CDC relied on §361(a) of the Public Health Service Act for authority to promulgate and extend the eviction moratorium. See 58 Stat. 703, as amended, 42 U. S.C. §264(a). That provision states:
"The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary…."
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.
Even if the text were ambiguous, the sheer scope of the CDC's claimed authority under §361(a) would counsel against the Government's interpretation. We expect Congress to speak clearly when authorizing an agency to exercise powers of "vast 'economic and political significance.'" Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160 (2000)). That is exactly the kind of power that the CDC claims here. At least 80% of the country, including between 6 and 17 million tenants at risk of eviction, falls within the moratorium…. "Our precedents require Congress to enact exceedingly clear language if itwishes to significantly alter the balance between federal and state power and the power of the Government over private property." United States Forest Service v. Cowpasture River Preservation Assn., 590 U. S. ___, ___–___ (2020)…
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…."
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. And it is further amplified by the CDC's decision to impose criminal penalties of up to a $250,000 fine and one year in jail on those who violate the moratorium…. Section 361(a) is a wafer-thin reed on which to rest such sweeping power.
As multiple lower court rulings have pointed out, such sweeping delegation of power to the executive branch would likely be unconstitutional, which is a further reason to interpret the statute in a way that avoids that problem, if possible.
In his dissent on behalf of the three liberal justices, Justice Stephen Breyer takes issue with the majority's interpretation of Section 361. But, significantly, he has no real answer to the point that the interpretation advocated by the government would give the CDC virtually unlimited power.
Breyer also argues that the majority acted too hastily in reinstating the district court's order, because lower courts were split over the legality of the original eviction moratorium (which suggests the issue is disputable). It is true there was disagreement in the lower courts, including a seriously flawed DC Circuit opinion supporting the moratorium in the case currently before the Supreme Court. But a large majority of lower court rulings on the issue (six of nine) went against the moratorium. And that doesn't count a recent Eleventh Circuit ruling, in which a 2-1 majority refused (on procedural grounds) to issue a preliminary injunction blocking the moratorium, but all three judges strongly suggested they believe the CDC order is illegal.
Moreover, as the majority pointed out, the legality of the CDC's eviction moratoria has been extensively litigated in the lower courts, and twice briefed before the Supreme Court itself. By now, the issues at stake have already been extensively aired.
Tonight's ruling is not, technically, a final decision on the merits. All it does is grant the plaintiffs' procedural motion to lift the stay against enforcement of the district court ruling against the CDC. But, as a practical matter, it is a clear and unambiguous signal of where the Supreme Court stands.
Moreover, for reasons I explained in my analysis of the original district court decision, that decision can plausibly be interpreted as a nationwide ruling vacating the CDC order, one not limited to the parties to this specific case. However, I am not expert on this particular procedural question, and therefore welcome correction by those with greater knowledge.
Even if tonight's decision does not immediately put an end to the moratorium, it does create a precedent that lower court judges will likely use to rule against the CDC in all the other cases challenging the moratorium around the country. Thus, practically speaking, the moratorium can no longer be effectively enforced against any property owners that choose to challenge it in court.
Tonight's ruling, like many of the earlier decisions in the eviction moratorium litigation, split the justices along left-right ideological lines. I lament that division.
Many on the left are likely to be unhappy with the result. But, as I have emphasized many times before, going back all the way to the initial enactment of the moratorium under Trump, progressives should ask themselves whether they really want the executive branch to have such sweeping power to shut down virtually any human activity of any kind. Even if you trust Biden to wield that power responsibly, do you have the same trust in the next Republican president?
People can differ over the policy merits of the eviction moratorium (I myself am highly skeptical of them). But both left and right have reason to be happy that the White House and CDC will be denied what one lower court ruling against the moratorium rightly called "near-dictatorial power."
NOTE: The plaintiffs in some of the lawsuits against the eviction moratorium (though not the one the Supreme Court just ruled on) are represented by the Pacific Legal Foundation, where my wife works. I myself have played a minor (unpaid) role in advising PLF on this litigation.