Alabama and Georgia real estate agents have asked the Supreme Court to block a federal moratorium on evictions that was imposed last year by the Centers for Disease Control and Prevention (CDC) amid the pandemic.
Congress enacted a nationwide moratorium on evictions and extended its life through Jan. 31, 2021. The Atlanta-based CDC, which is part of the U.S. Department of Health and Human Services, then imposed its own moratorium at the behest of then-President Donald Trump, the current iteration of which is set to run out on June 30. The theory was that uprooting tenants would spread the virus, which now appears to be in decline. Violators could face criminal penalties and six-figure fines.
The real estate agents argue in their emergency application in Alabama Association of Realtors v. Department of Health and Human Services, filed on June 3, that the CDC’s moratorium “shifted the economic burdens of the pandemic from renters to landlords.”
“In doing so, the CDC shifted the pandemic’s financial burdens from the nation’s 30 to 40 million renters to its 10 to 11 million landlords—most of whom, like applicants, are individuals and small businesses—resulting in over $13 billion in unpaid rent per month. Since then, the CDC has twice extended its moratorium, which is currently set to expire on June 30, 2021 (unless extended, yet again),” the application states.
“The total effect of the CDC’s overreach may reach up to $200 billion if it remains in effect for a year. And due to the government’s sovereign immunity, its inability to provide timely rental assistance, and the judgment-proof nature of the tenants covered by the moratorium, that massive wealth transfer (and accompanying government-sanctioned unlawful occupation of property) will never be fully undone.”
A month ago, U.S. District Judge Dabney Friedrich vacated the moratorium, finding it exceeded the authority that Congress gave the CDC in federal public health laws.
The Public Health Service Act “authorizes the Department to combat the spread of disease through a range of measures, but these measures plainly do not encompass the nationwide eviction moratorium set forth in the CDC Order,” Friedrich, a Trump appointee, wrote in a memorandum opinion on May 5.
“Thus, the Department has exceeded the authority provided in § 361 of the Public Health Service Act, 42 U.S.C. § 264(a).”
The real estate agents referred to the Public Health Service Act as “a rarely-used statute from 1944 dealing with quarantines and inspections for purposes of stopping the spread of disease on an international or interstate basis.”
They say the CDC claims the statute “bestowed upon it the unqualified power to take any measure imaginable to stop the spread of communicable disease—whether eviction moratoria, worship limits, nationwide lockdowns, school closures, or vaccine mandates.”
Friedrich stayed her order pending the government’s appeal. The U.S. Court of Appeals for the District of Columbia Circuit left the stay in place.
“The stay order cannot stand,” the real estate agents argue in their application.
“Congress never gave the CDC the staggering amount of power it now claims. Nor do this Court’s precedents permit unlawful agency actions to persist throughout the pendency of an appeal merely because the government has raised serious questions on the merits—a standard that will be satisfied in nearly every case where the government’s authority has been challenged.”
Chief Justice John Roberts asked the government to respond to the application by 5 p.m. on June 10.
Acting Solicitor General Elizabeth Prelogar didn’t respond to a request for comment by press time.