Supreme Court Ends Eviction Ban

The U.S. Supreme Court ended a federal ban on evictions during the COVID-19 pandemic.

On Thursday, Aug. 26 the court issued a decision on Alabama Association of Realtors versus the Department of Health and Human Services, which considers the moratorium on evictions enacted by the Centers for Disease Control and Prevention (CDC).

A ban was first enacted as part of the CARES Act in March 2020 and included properties that participated in federal assistance programs or were subject to federally backed loans. This ended in July 2021, with Congress not renewing in the weeks before it expired.

Shortly after, a new moratorium was enacted by the CDC based on U.S. Code created by the Public Health Service Act of 1944, which gives the surgeon general, with the approval of the secretary of Health and Human Services, authorization to “make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.”

The majority opinion objected to this use of the Public Health Service Act.

“Originally passed in 1944, this provision has rarely been invoked—and never before to justify an eviction moratorium,” explains the majority decision. “Regulations under this authority have generally been limited to quarantining infected individuals and prohibiting the import or sale of animals known to transmit disease. … The case has been thoroughly briefed before us – twice. And careful review of that record makes clear that the applicants are virtually certain to succeed on the merits of their argument that the CDC has exceeded its authority. It would be one thing if Congress had specifically authorized the action that the CDC has taken. But that has not happened. Instead, the CDC has imposed a nationwide moratorium on evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination. It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.”

The resulting 6-3 decision ends the moratorium on evictions for lack of ability to pay rent.

“If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it,” the majority decision reads. “The application to vacate stay presented to [Chief Justice John Roberts] and by him referred to the Court is granted. … [Justice Brett Kavanaugh] concurred, explaining that he agreed with the District Court that the CDC’s moratorium exceeded its statutory authority. … Congress was on notice that a further extension would almost surely require new legislation, yet it failed to act in the several weeks leading up to the moratorium’s expiration. It is indisputable that the public has a strong interest in combating the spread of the COVID–19 Delta variant. But our system does not permit agencies to act unlawfully even in pursuit of desirable ends. It is up to Congress, not the CDC, to decide whether the public interest merits further action here. … [Justices Clarence Thomas, Samuel Alito, Neil M. Gorsuch, and Amy Coney Barrett] noted that they would vacate the stay.”

The financial impact on landlords was also cited in the decision, explaining that the ban deprived them of “one of the most fundamental elements of property ownership — the right to exclude.”

“The equities do not justify depriving the applicants of the District Court’s judgment in their favor,” the majority decision reads. “The moratorium has put the applicants, along with millions of landlords across the country, at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery. … 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 deems a measure ‘necessary.’ Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable? Require manufacturers to provide free computers to enable people to work from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work?”

Justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan opposed the majority decision, seeking to keep the eviction ban in place. In the dissent, they highlighted three reasons the ban did fall under the authority of the CDC.

— “First, it is far from ‘demonstrably’ clear that the CDC lacks the power to issue its modified moratorium order. The CDC’s current order is substantially more tailored than its prior eviction moratorium, which automatically applied nationwide. Justified by the Delta-variant surge, the modified order targets only those regions currently experiencing skyrocketing rates.”

— “Second, the balance of equities strongly favors leaving the stay in place. Applicants say they have lost ‘thousands of dollars’ in rental income. … That injury is lessened by the moratorium order’s directive that tenants have an obligation to make ‘as close to the full rent payment’ as possible. … And to compensate for the shortfall, Congress has appropriated more than $46.5 billion to help pay rent and rental arrears. … It may, as applicants say, take time to get that money – and that is an injury. But compare that injury to the irreparable harm from vacating the stay. COVID–19 transmission rates have spiked in recent weeks, reaching levels that the CDC puts as high as last winter: 150,000 new cases per day. … To date, the CDC estimates that 38,150,911 Americans have been sickened. 629,139 have died.”

— “Third, the public interest is not favored by the spread of disease or a court’s second-guessing of the CDC’s judgment. The CDC has determined that ‘[a] surge in evictions could lead to the immediate and significant movement of large numbers of persons from lower density to higher density housing. . . when the highly transmissible Delta variant is driving COVID–19 cases at an unprecedented rate.’ … The CDC cites models showing up to a 30% increased risk of contracting COVID–19 for some evicted people and those who share housing with them after displacement. Ibid. The CDC invokes studies finding nationally over 433,000 cases and over 10,000 deaths may be traced to the lifting of state eviction moratoria. The public interest strongly favors respecting the CDC’s judgment at this moment, when over 90% of counties are experiencing high transmission rates.”

Even with the eviction ban no longer in effect, West Virginia renters in need can still qualify for the West Virginia Mountaineer Rental Assistance program. A federal program sending money to landlords on behalf of tenants unable to pay during the COVID-19 pandemic was created in the December 2020 COVID-19 relief bill, supplying $25 billion for the country and $200 million for West Virginia.

Ronceverte Recorder Leah Smith works with Legal Aid of West Virginia, assisting residents who need help with the Mountaineer Rental Assistance program, the state program distributing the funds, which allows both tenants and landlords to apply.

“It’s pretty wide open — it isn’t available for everyone but if you fall into a certain low income, which most West Virginians are going to,” said Smith. “If you know anybody that’s hurting and hasn’t been able to pay rent, please apply. It is unprecedented. We’re not likely to see another amount of money like this available. It’s to pay 15 months of rent. … There’s also money for utility assistance for people that haven’t been able to pay during COVID. There’s money for that too.”

To apply for the program, go to wvhdf.com and click the orange link on the top of the page that reads “real help for West Virginia renters and landlords is here.” The site also notes calling 211 can provide assistance. The website also offers a place to insert an address to have a physical application mailed.

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