• Curt Levey

SCOTUS Ends Eviction Moratorium: Levey on why moratorium was unlawful


August 27, 2021


Last night, the U.S. Supreme Court struck down President Biden’s August 3 extension of the CDC’s eviction moratorium. Earlier this week, Committee for Justice president Curt Levey wrote about why the CDC-imposed moratorium is unconstitutional, concluding that “the courts should not hesitate to put an immediate end to it before it does more damage.” Levey’s key points were:

  • “[T]he nationwide eviction moratorium doom[ed] countless small landlords to financial ruin … [L]andlords big and small have already gone more than a year facing unpaid rent that is costing them $14 to $19 billion each month.”

  • “In light of the Supreme Court’s ruling, President Joe Biden called on Congress to extend the moratorium past July 31. … Congress declined.”

  • “Federalism concerns are ... raised because the CDC is regulating the landlord-tenant relationship, traditionally left to the states … Supreme Court precedent requires ‘a clear indication’ from Congress if it intends to override the ‘usual constitutional balance of federal and state powers.’”

  • “A plain reading of the relevant section of the statute, originally captioned ‘Quarantine and Inspection,’ shows that the power it grants to the CDC is actually limited to quarantining contagious people and measures such as inspection, fumigation, disinfection, and pest extermination.”

  • “[T]he Centers for Disease Control and Prevention stretched its regulatory authority beyond recognition by enacting its own more extensive moratorium.”

  • “As the landlords in a legal challenge to the moratorium correctly argue , the CDC’s expansive reading gives it ‘free rein to do anything it can conceive of, if it merely asserts that it subjectively believes the action helps slow the spread of disease.’”

  • “The CDC’s expansive reading of that provision to encompass an eviction moratorium is unprecedented”

The Supreme Court’s reasoning last night was similar:

  • “The moratorium has put … millions of landlords across the country, at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery. Despite the CDC’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means.”

  • “Congress was on notice that a further extension would almost surely require new legislation, yet it failed to act in the several weeks leading up to the moratorium’s expiration.”

  • “The moratorium intrudes into an area that is the particular domain of state law: the landlord-tenant relationship. [Supreme Court] precedents require Congress to enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power.”

  • "[T]he 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.”

  • “[I]t is a stretch to maintain that [the statute] gives the CDC the authority to impose this eviction moratorium.”

  • “It is hard to see what measures this interpretation would place outside the CDC’s reach, and the Government has identified no limit in [the statute] beyond the requirement that the CDC deem a measure ‘necessary.’”

  • “This claim of expansive authority under [the statutory provision] is unprecedented.”