In March 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act, which, in part, imposed a 120-day eviction moratorium on properties subject to federally backed mortgage loans. Congress did not renew the eviction moratorium after its 120-day term. Instead, the CDC promulgated a more expansive administrative eviction moratorium covering all residential properties nationwide and imposed criminal penalties on violators. The CDC’s moratorium was originally scheduled to expire on December 31, 2020; however, subsequent renewals extended the moratorium through October 3, 2021.
To support its actions, the CDC relied on the statutory provision of section 361(a) of the Public Health Service Act, which provides:
The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest ex-termination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.1
In a 6-3 decision, the Supreme Court found the CDC’s reliance on section 361(a) to be unconstitutional. The Supreme Court reasoned that “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 [section 361(a)] grants the CDC sweeping authority that it asserts.” The Supreme Court found that the CDC misconstrued the scope of its authority under section 361(a) and that this statutory provision “is a wafer-thin reed on which to rest such sweeping power.”
The Supreme Court acknowledged the strong public interest of combating the spread of the COVID-19 Delta variant, but opined that the judicial system does not permit administrative agencies to issue unconstitutional regulations – even in pursuit of a desirable outcome. Rather, the Supreme Court rested its decision on the fact that it is up to Congress, not the CDC, to decide whether a federally imposed eviction moratorium is to continue.
In a few jurisdictions, such as California, Minnesota, New Jersey, New York, and Washington, state governments have enacted their own legislation suspending residential evictions during the ongoing pandemic. The Supreme Court’s decision will have little to no impact on those states’ moratoria. However, the effect of the Supreme Court’s decision will be felt immediately in most states, where governments have relied entirely on the CDC’s moratorium to curtail eviction actions. Accordingly, the Supreme Court’s rejection of the CDC’s moratorium may cause state and local governments to enact a flurry of new eviction moratoria in the wake of the recent decision.
- See
58 Stat. 703, as amended, 42 U.S.C. section 264(a).
Client Alert 2021-226
