It’s not a good sign for the president when he admits that he’s about to lose in the courts. It’s even worse when what he’s doing is all that stands between Americans and a national eviction crisis. But his analysis of the Centers for Disease Control’s latest eviction moratorium is almost certainly correct: “The bulk of the constitutional scholars say it’s not likely to pass constitutional muster,” President Joe Biden said at a press conference on Tuesday.
Unlike the previous moratorium, which explicitly applied to the entire country, the new moratorium is limited to counties with “high” or “substantial” levels of community spread of Covid-19 over the past seven days. You could be forgiven for thinking it’s still a national moratorium: At the time of the order’s issuance, that limit covers virtually the entire South, almost all of the West, and large swaths of the Midwest and the Northeast. The CDC said the order would automatically expire within 60 days, on October 3.
The real question is whether the courts will kill it before the passage of time has the chance. In June, the Supreme Court narrowly refused to suspend the moratorium while landlords challenged it in court. Justice Brett Kavanaugh, who cast the deciding vote, said he wouldn’t uphold the moratorium again after its July 31 expiration date or if it wasn’t backed by congressional action. The White House, for reasons known only to them, waited until July 29 to ask Congress to formally ask lawmakers to take action. Congress, unsurprisingly, failed to pass something before it lapsed three days later.
In a way, it’s a miracle that the CDC eviction moratorium lasted this long. The Supreme Court never seemed fully comfortable with the wave of state and federal Covid-19 restrictions, though up until now it has avoided a direct confrontation with them. If there are two things the court’s conservative bloc doesn’t like, it’s broad readings of vague federal statutes and indefinite burdens upon property rights. The eviction moratorium combines both in spectacular fashion.
From where does the CDC derive this authority? The agency cited a provision in the Public Health Service Act of 1944, which sets forth many of the federal government’s public health powers. It authorizes the secretary of health and human services, via the CDC, 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.” The CDC cited that provision alone to justify its unprecedented actions.
To justify this week’s move, the CDC argued that halting all evictions across the country is a necessary regulation to prevent the spread of Covid-19. “A surge in evictions could lead to the immediate and significant movement of large numbers of persons from lower density to higher density housing at a time in the United States when the highly transmissible Delta variant is driving Covid-19 cases at an unprecedented rate,” the agency said in its moratorium order on Tuesday. It noted that evicted families tend to move in with relatives, increasing household sizes and thus making such moves one of the likeliest vectors for transmission.
The CDC eviction moratorium first began after a congressionally enacted one lapsed last year and wasn’t renewed. “With the failure of the Congress to act, my administration must do all that it can to help vulnerable populations stay in their homes in the midst of this pandemic,” former President Donald Trump said in a statement at the time. “Those who are dislocated from their homes may be unable to shelter in place and may have more difficulty maintaining a routine of social distancing. They will have to find alternative living arrangements, which may include a homeless shelter or a crowded family home and may also require traveling to other States.”
The Alabama Association of Realtors, which filed a federal lawsuit against the CDC earlier this year, argued that the moratorium had no legal basis. The next sentence in the provision cited by the CDC says, for example, that the secretary “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.” In the AAR’s eyes, the loosely written law was designed for border inspections and interstate quarantines, not national eviction moratoriums.
That reading appears to have a receptive audience at the Supreme Court. Four of the justices—Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett—voted in favor of immediately suspending the eviction moratorium. Since five votes are needed for the court to take action like this, we can logically assume that Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan voted in favor of leaving the moratorium intact pending appeal. Justice Brett Kavanaugh, wielding the tie-breaking vote, split the baby.
“I agree with the district court and the applicants that the [CDC] 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.”
Kavanaugh drew some criticism for this maneuver from conservative and libertarian legal figures, who are increasingly comfortable criticizing the moratorium. National Review’s Andrew McCarthy denounced Kavanaugh for a “maddening, though mercifully brief, opinion” that amounted to a “craven nod to the lawless eviction moratorium.” Had Kavanaugh voted the way that National Review wanted, of course, hundreds of thousands of families would have been left homeless without warning or recourse right before the delta variant surge slammed into the country.
In short, the Supreme Court effectively gave Biden and Congress just over one month to fix the disbursement of rental assistance funds and/or to reimpose the moratorium through new legislation. They did neither. By most accounts, states and counties have been sluggish at best to set up programs to disburse billions in funds from federal pandemic-relief coffers. The White House, for its part, did not put pressure on Congress until right before the moratorium expired and right before the House was set to leave town for its annual August recess.
Other legal observers blame the Supreme Court for this state of affairs. Slate’s Mark Joseph Stern complained that Democrats are “incapable of explaining how the Supreme Court stymies their own agenda” and that this error “shields the court from criticism, consequences, and accountability when its decisions wreak havoc.” Vox’s Ian Millhiser also faulted the White House and Speaker Nancy Pelosi for not sufficiently blaming the justices. “The reason why the Biden administration cannot extend the moratorium by invoking the CDC’s statutory authority is that the Court was quite clear that it would not permit such an extension,” he wrote.
This is true in a purely mechanical sense: Obviously if Kavanaugh or any of his four colleagues to the right wanted to keep the eviction moratorium intact, it would still be intact. But focusing on the Supreme Court also lets Democrats off the hook. Congress and the White House had just over a month to pass a new law and put the moratorium on more stable legal footing and squandered it. Now renters are in an even more precarious place than before, and the Supreme Court’s conservative bloc is poised to make its first major move to curb federal public health powers.
Things will only get worse in the months to come as other pandemic safety nets reach their expiration dates. The federal foreclosure moratorium, which shielded more than a million homeowners from forbearance over the past year, also quietly lapsed on July 31. As with the eviction moratorium, billions in federal funds to offset the accrued financial penalties have yet to be disbursed. And on October 1, the federal pause on student loan payments and interest rates will also come to an end. Millions of Americans are about to face entirely avoidable financial hardships, well before the economy recovers or the pandemic abates, and the Biden administration can’t blame the Supreme Court for all of them.