By Amy Howe
August 20, 2021
at 9:16 p.m.
A group of Alabama realtors and landlords returned to the Supreme Court on Friday, asking judges to block the Biden administration’s latest eviction ban during the COVID-19 pandemic. The request came just under two months after the justices, in a 5-4 vote, refused to lift an earlier version of the eviction moratorium. Judge Brett Kavanaugh provided the key vote in late June to keep the previous version of the ban in place, explaining that although he agreed with the challengers that the Centers for Disease Control and Prevention had exceeded their authority when they issued the ban, he voted no to cancel it because the ban was due to expire at the end of July.
As originally enacted by Congress in early 2020, the ban on evictions applied to all rental properties receiving federal assistance and was to last for 120 days. When that moratorium expired, the Trump administration imposed a broader moratorium that applied to all rental properties in the United States. Congress initially extended this moratorium for 30 days; the CDC later extended it through July 2021.
Realtors and landlords went to federal court in Washington, D.C., arguing the CDC lacked the authority to issue the ban — which they added cost landlords billions of dollars in unpaid rent each month. In early May, Judge Dabney Friedrich agreed, but she suspended her decision while the government appealed. The United States Court of Appeals for the District of Columbia Circuit issued a ruling on June 2 that kept Friedrich’s stay — and therefore the moratorium — in place.
The challengers then turned to the Supreme Court, asking for an emergency ruling that would allow Friedrich’s decision to take effect and, therefore, lift the moratorium. But with Kavanaugh joining Chief Justice John Roberts and the court’s three liberal justices — Stephen Breyer, Sonia Sotomayor and Elena Kagan — in voting against the remedy, the moratorium remained in place for its final month.
Shortly before the moratorium expired at the end of July, the White House indicated that the CDC would not extend the moratorium further. Instead, the White House called on Congress to act. But on August 3, after Congress failed to do so, the CDC extended the moratorium for another two months. The new version of the moratorium applies to areas with high levels of community transmission of COVID-19 — about 90% of U.S. counties.
The challengers returned to court, and on August 13, Friedrich rejected their request to lift the new version of the moratorium. “It is true,” she wrote, “that the recent Supreme Court decision in this case strongly suggests that the CDC is unlikely to prevail on the merits” of its claims. However, she reasoned, because the new iteration of the moratorium was “virtually identical” to the version covered by her May order, her “hands are tied” by the DC Circuit’s decision putting her previous order on hold.
In a brief order on Friday, the DC circuit left the moratorium in placerejecting the challengers’ request to block the eviction ban while litigation continues, setting the stage for the challengers’ return to the Supreme Court later in the day.
In their 40-page filing, the challengers reiterated the same argument they made in June, noting that it had the apparent support of five court members: “Congress has never given the CDC the staggering power that ‘he claims now’. Instead, the challengers observed, the CDC invoked as the authority for the eviction ban “a seldom-used statute of 1944 whose domain had previously been limited to matters such as the sale of baby turtles.”
Indeed, the challengers pointed out, the Biden administration extended the moratorium despite its acknowledgment that there was no legal authority for the ban. Challengers instead attributed the administration’s actions to a desire to “appease” members of Congress and “get as much rental assistance as possible” before the ban is blocked.
The challengers’ request was first directed to Roberts, who handles emergency calls for the District of Columbia. Roberts acted quickly, asking the Biden administration to file its response by noon Monday, August 23. Once the response and response from challengers is received, Roberts can act on the request alone or, as is more likely in a high-profile profile. case like this, refer it to the full court.
This article has been originally published at Howe on the Court.