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Supreme Court strikes down CDC eviction moratorium despite delta’s rise

Activists gather near New York’s City Hall on Aug. 11 to protest ending an eviction moratorium. (Spencer Platt/Getty Images)

A divided Supreme Court has ended a national moratorium on evictions in parts of the country ravaged by the coronavirus pandemic, removing protections for millions of Americans who have not been able to make rent payments.

A coalition of landlords and real estate trade groups in Alabama and Georgia challenged the latest extension of a moratorium imposed by the Centers for Disease Control and Prevention, issued Aug. 3 and intended to run through Oct. 3.

In an unsigned opinion released Thursday night, the Supreme Court’s conservative majority agreed that the federal agency did not have the power to order such a ban.

“It is indisputable that the public has a strong interest in combating the spread of the COVID-19 Delta variant,” the majority’s eight-page opinion said. “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.”

The court’s three liberal justices dissented and said the majority’s rush to end the moratorium was inappropriate and untimely.

“The public interest strongly favors respecting the CDC’s judgment at this moment, when over 90% of counties are experiencing high transmission rates,” wrote Justice Stephen G. Breyer, joined by Justices Sonia Sotomayor and Elena Kagan.

The national eviction moratorium is officially dead. In some parts of the country, it has been for a while.

It was the second loss of the week for the Biden administration at the Supreme Court. Earlier, the conservative majority said the administration had to comply with a court ruling ordering it to reinstate a Trump-era policy that requires asylum seekers to wait outside the country before making their pleas.

In a statement Thursday night, White House spokeswoman Jen Psaki said the eviction opinion meant “families will face the painful impact of evictions, and communities across the country will face greater risk of exposure to COVID-19.”

As of June, over 6 million people were behind on rent. Landlords across the United States are still owed about $27.5 billion. (Video: Monica Rodman, Sarah Hashemi/The Washington Post, Photo: Stefani Reynolds/The Washington Post)

The National Association of Realtors said the court’s action was correct “from both a legal standpoint and a matter of fairness. It brings to an end an unlawful policy that places financial hardship solely on the shoulders of mom-and-pop housing providers, who provide nearly half of all rental housing in America, and it restores property rights in America.”

The moratorium had already been considered once by the high court. A district judge in D.C., and several other courts around the country, said in a series of rulings that powers granted to the CDC to protect public health during a pandemic did not include a ban on evictions for those who fell behind on their payments.

But U.S. District Judge Dabney Friedrich stayed her most recent order so that the administration could appeal.

With tenants who won’t pay or leave, small landlords face struggles of their own

Although the Biden administration asked the Supreme Court to preserve what it called a “lawful and urgently needed response to an unprecedented public emergency,” a majority of justices already had signaled agreement with Friedrich.

Over the objections of the court’s four most conservative justices, the court in June left in place a previous version of the eviction ban that was supposed to expire at the end of July. But Justice Brett M. Kavanaugh, who cast the deciding vote in that decision, also said he believed any extension of the ban would require explicit congressional action.

Congress did not respond, however, and initially the Biden administration said its hands were tied. After pressure from constituent groups and liberals in Congress, one of whom camped outside the U.S. Capitol to draw attention to the issue, the administration issued a new and slightly narrowed version of the moratorium. But even the president was fatalistic.

“I went ahead and did it,” Biden told reporters. “But here’s the deal: I can’t guarantee you the court won’t rule [that] we don’t have that authority. But at least we’ll have the ability, if we have to appeal, to keep this going for a month at least — I hope longer than that.”

The challengers in their brief to the court used the president’s words to argue that the administration knew it was on unstable legal ground. “The only plausible explanation for the extended moratorium is that it was issued in response to political pressure from Capitol Hill for the express purpose of using litigation delays to distribute more rental assistance,” their brief says. “Nearly a year of overreach is enough.”

Rep. Cori Bush (D-Mo.), who organized the campout at the Capitol, said Thursday that Congress needs to step up.

“Tonight, the Supreme Court failed to protect the 11 million households across our country from violent eviction in the middle of a deadly global pandemic,” Bush said in a statement, adding, “Congress must act immediately to prevent mass evictions and I am exploring every possible option.”

Congress originally imposed an eviction moratorium. When it expired, President Donald Trump ordered the CDC to impose one, which has been extended several times.

The legal issue involves the Public Health Service Act. It gives the agency authority to “make and enforce such regulations . . . necessary to prevent the introduction, transmission, or spread of communicable diseases.”

But challengers, and some lower courts that have reviewed the issue, say the power is limited by another provision contained within the act that lists measures such as “fumigation, disinfection, sanitation, pest extermination.”

The Supreme Court majority agreed. “It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts,” the opinion said.

The CDC said its ban applies to renters who “otherwise would likely need to move to congregate [or shared-living] settings where COVID spreads quickly and easily, or would be rendered homeless and forced into shelters or other settings that would increase their susceptibility to COVID.”

Breyer wrote in his dissent that the CDC’s judgment should be respected, and said the majority’s summary disposal of the case was unwarranted.

It raises “contested legal questions about an important federal statute on which the lower courts are split and on which this Court has never actually spoken,” Breyer wrote. “These questions call for considered decisionmaking, informed by full briefing and argument.”

The moratorium did not wipe away rental bills for people who had fallen behind on payment. To address that need, Congress allocated $46.5 billion in emergency rental assistance. But the distribution of the money has been painfully slow.

Technical glitches dogged online systems. Landlords and tenants without Internet had even more trouble applying for aid.

In a struggling city, some federal rental aid has been hard to spend

The amount of money that has actually reached people is a fraction of the $46.5 billion appropriated by Congress.

Of the $25 billion appropriated in December, state and local programs spent about $5.1 billion between January and the end of July, according to figures released Wednesday by the Treasury Department. A March relief package provided the other $21.5 billion. About $108 million of that bucket had been spent as of June.

Last month, nearly $1.7 billion was spent on rent, utilities and missed payments for vulnerable households, according to the Treasury Department data. That’s only a slight uptick from the $1.5 billion that was disbursed in June, despite intense pressure on the Biden administration and local officials to ramp up spending before July 31, when the initial CDC moratorium expired .

The White House implored state and local governments, courts, legal aid organizations and community groups to do all they could to slow-track evictions and keep people in their homes.

But many housing advocates said the administration took too long to direct so much public attention toward the looming eviction crisis. As the delta variant spread and coronavirus cases soared, administration officials scrambled to offer an explanation of how the moratorium would be allowed to expire while so much rental aid was still untapped.

With its August order, the CDC aimed to temporarily halt evictions in areas experiencing an increase in coronavirus cases, citing significant transmission of the delta variant. The agency said at the time that more than 80 percent of U.S. counties were classified as experiencing substantial or high levels of community transmission.

It is estimated that about 6 million renters remain behind on payments, according to Moody’s.

Depending on where they live, tenants may still be protected by state or municipal bans or restrictions on who may be evicted. Tenants in at least eight states and D.C. will have some pandemic-related protections through the end of August. But those could be threatened, too.

The Supreme Court earlier this month lifted part of New York’s pandemic-related ban on residential evictions, siding with a group of landlords who said their rights were being violated.

The CDC case is Alabama Association of Realtors v. Department of Health and Human Services.