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The Supreme Court Will Allow Evictions To Resume. It Could Affect Millions Of Tenants

Maricopa County constable Darlene Martinez knocks on a door before posting an eviction order on Oct. 1, 2020, in Phoenix. An extended eviction moratorium ordered by the Centers for Disease Control and Prevention has been struck down.
Maricopa County constable Darlene Martinez knocks on a door before posting an eviction order on Oct. 1, 2020, in Phoenix. An extended eviction moratorium ordered by the Centers for Disease Control and Prevention has been struck down.

Updated August 26, 2021 at 10:29 PM ET

The U.S. Supreme Court has blocked the Biden administration's order extending the federal eviction moratorium to a large swath of the country, in a decision expected by both legal scholars and the White House.

The ban on evictions, a two-month order, was issued by the Centers for Disease Control and Prevention. The pause covers parts of the United States that are experiencing what the CDC calls "substantial" and "high" spread of the coronavirus.

The unsigned decision from the court was 6-3, with the court's three liberal justices dissenting.

The court's majority said the CDC exceeded its authority with the temporary ban.

The majority opinion says that the CDC for its order relied 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 majority writes, adding: "If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it."

White House press secretary Jen Psaki said the administration is "disappointed" by the decision.

"As a result of this ruling," she said in a statement, "families will face the painful impact of evictions, and communities across the country will face greater risk of exposure to COVID-19."

Thursday's decision was all but written in June when the Supreme Court, in a 5-4 decision, allowed an earlier moratorium issued by the CDC to stand. At that time, Justice Brett Kavanaugh sided with the majority but wrote that he did that because the moratorium was set to expire in just a few weeks on July 31.

Back then, Kavanaugh, who cast the fifth and deciding vote, also wrote that he voted not to end the eviction program, "because those few weeks will allow for additional and more orderly distribution" of the funds that Congress appropriated to provide rental assistance to those in need due to the pandemic.

But Kavanaugh said that in his view Congress would have to pass new and clearer legislation to extend the moratorium past July. And despite a last-minute effort in Congress to do that, lawmakers didn't have the votes.

Slow rollout of aid

Congress has approved nearly $50 billion to help people pay back rent and avoid eviction. But while in some states and counties that's been working well, in many others the help hasn't reached the vast majority of renters who need it.

By one estimate, 15 states still haven't managed to get even 5% of those federal dollars out the door to renters facing eviction.

With the Delta variant of COVID surging in many parts of the country, the CDC issued a more limited eviction moratorium through Oct. 3.

This latest decision from the court comes just about three weeks after the CDC issued that protection.

"Without this Order, evictions in these [higher transmission] areas would likely exacerbate the increase in cases," the CDC order said, adding: "The COVID-19 vaccination effort has a slower rate of penetration among the populations most likely to experience eviction."

The CDC moratorium has protected many from eviction. More than 7 million people are still behind on rent in the wake of the pandemic related shutdowns.

"Nationwide, we've got about twice as many people as normal not being able to pay rent," says Peter Hepburn, a researcher with Princeton University's Eviction Lab. But he says the CDC order has been shielding many of them.

"Over the last 11 months, while this eviction moratorium has been in place, we estimate that there have been at least 1.5 million fewer eviction cases than normal," Hepburn says. "This has really helped to keep an extraordinary number of families in their homes."

Back and forth on Capitol Hill

The CDC's latest move to modify and extend its federal eviction order followed a week in which the moratorium became a political football in Washington. After Congress failed to extend it past July 31, that led Democratic congressional leaders and progressives to call on Biden to extend the moratorium through Oct. 18.

But on Aug. 2, Gene Sperling, who oversees the White House's rollout of the COVID relief, said Biden "has double, triple, quadruple checked" on whether he could unilaterally extend the eviction moratorium, but determined it was not possible.

Sperling pushed back against criticism from Democrats on Capitol Hill who said the White House should have acted sooner in extending the eviction moratorium. He noted that the Supreme Court made it clear that "congressional authorization" was needed on the matter.

The White House also maintained that the CDC "has been unable to find legal authority for a new" eviction moratorium, even as Biden called on states and localities to put in place evictions moratoriums for at least the next two months.

In remarks to reporters earlier this month, Biden himself predicted the legal challenges the moratorium would face, saying: "Any call for a moratorium based on the Supreme Court's recent decision is likely to face obstacles."

That's what happened on Thursday.

Housing groups have warned that pulling the CDC eviction protections away from people before congressional aid can reach them would spark a wave of evictions that could otherwise be avoided. Landlords have long argued that the CDC order was an overreach and that the agency doesn't have the power to, in effect, take control of their properties.

At the outset of the coronavirus pandemic, Congress adopted a limited, temporary moratorium on evictions. After the moratorium lapsed last July, however, then-President Donald Trump asked the CDC to step in and issue a new eviction ban, which it did in September. In March, Biden extended that ban, which expired at the end of June. Then on June 24, the Biden administration notified the Supreme Court it had extended the moratorium until July 31. It also said that barring a rise in coronavirus cases, the "CDC does not plan to extend the Order further."

Since then, however, there has been a steady rise in COVID-19 cases, driven by the delta variant, largely in areas with the lowest vaccination rates.

"The trajectory of the pandemic has since changed — unexpectedly, dramatically, and for the worse," the Biden administration wrote in a filing in the case before the Supreme Court, citing a nearly 10-fold increase in daily new COVID cases.

A conservative court

Some housing legal experts say the case lays bare the new nature of the Supreme Court with its three conservative justices confirmed during the Trump administration.

"Some people would say is a more conservative court because they want to view it as a binary," says Shamus Roller, the executive director of the National Housing Law Project. "But what this is, is a more radical court. It's one that's willing to ignore the law to get the outcome that they want around this particular case."

Roller says the fact that Congress itself voted for an earlier extension of the CDC order as part of its COVID relief legislation should have been enough to satisfy the court as to the intent of Congress regarding the CDC's authority to impose the moratorium — the central issue in the case.

The realtors group bringing the case though argued the CDC had exceeded its authority and that the moratorium has been collectively costing landlords billions of dollars every month.

Housing groups say it's crucial now that the programs around the country distributing that $50 billion from Congress get more money out the door to renters more quickly. They say if landlords see that process is working, they will be more patient and hold off on evictions.

But in places where the rental relief distribution is still more of a mess, they say more landlords will lose faith and decide evicting tenants is their best option.

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