BY Harry J. Kelly

The on-again, off-again eviction moratorium imposed earlier this month by the Centers for Disease Control and Prevention (CDC) is off again, and this time apparently for good. The U.S. Supreme Court issued an order last Thursday concluding that in issuing its most recent eviction moratorium, the CDC exceeded its authority under section 361(a) of the Public Health Service Act. Alabama Assn. of Realtors v. Dept. of Health and Human Services, No. 21A23 (Aug. 26, 2021). Last month, the court had narrowly upheld the eviction moratorium on a 5–4 vote, with Justice Kavanaugh signaling he only voted to leave the eviction moratorium in place because it would expire at the end of the month. Express congressional authorization would be needed to uphold a future moratorium, he warned. When the CDC reinstated the moratorium earlier this month, his vote changed, and in its unsigned decision, the Supreme Court this time voted 5–4 against the moratorium. According to the Supreme Court, sec. 361 was focused on interdicting the interstate transmission of infectious material, which did not include imposing an eviction moratorium. Echoing Justice Kavanaugh’s warning last month, the court argued such nationwide action with significant economic ramifications would require a clear statement from Congress, which, so far, has not happened.

Writing on behalf of the minority, Justice Breyer expressed their view that there were legal justifications for the moratorium that should have been considered through full briefing and normal judicial procedures, rather than expedited emergency petitions, and that the harm of lifting the moratorium outweighed the injury that leaving it in place would cause property owners.

Absent new legislation, the Supreme Court’s decision puts an end to the CDC’s authority to issue a nationwide eviction moratorium, at least under the authority it has used to date. Whether an eviction moratorium is really needed to prevent a wave of evictions is unclear—while census data suggests many tenants are behind in their rents, industry data indicates that the percentage of tenants who pay their rent within the first week of the month has barely changed since the pandemic began. Pressure will undoubtedly shift back to the states to revive moratoriums they imposed when the pandemic began and to more effectively implement programs to distribute the billions of dollars in emergency rental assistance that Congress has appropriated.

Getting those funds into the proper hands swiftly was always a better solution than an eviction moratorium, which at best only delays the inevitable. Greater efforts will be needed to educate both renters and property owners about the availability of those funds and to set up mechanisms for local agencies to receive applications for funds and distribute them efficiently. The pandemic is not over yet and neither, apparently, is the pain for renters and housing providers that it caused.