At Least 5 Justices Seem To Think the CDC's Eviction Moratorium Is Illegal. SCOTUS Left It in Place

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At Least 5 Justices Seem To Think the CDC's Eviction Moratorium Is Illegal. SCOTUS Left It in Place Anyway.

Brett Kavanaugh, who provided a crucial fifth vote, said he agrees that the CDC does not have the authority to override rental contracts.

JACOB SULLUM | 6.30.2021 12:15 PM

The Supreme Court yesterday declined to remove a stay on a decision against the nationwide eviction moratorium that the Centers for Disease Control and Prevention (CDC) imposed in response to the COVID-19 pandemic. A concurring statement by Justice Brett Kavanaugh nevertheless indicates that a majority of the Court thinks the CDC's order, which was recently extended and is now scheduled to expire at the end of July, exceeds its statutory authority.

On May 5, Dabney Friedrich, a federal judge in Washington, D.C., ruled that the moratorium, which applies to tenants who claim financial hardship, is not authorized by the Public Health Service Act, the statute that the CDC cited as the basis for its order. "Because the plain language of the Public Health Service Act…unambiguously forecloses the nationwide eviction moratorium," Friedrich wrote, "the Court must set aside the CDC Order, consistent with the Administrative Procedure Act…and D.C. Circuit precedent."

Friedrich granted a stay of her order pending the government's appeal, and on June 2 the U.S. Court of Appeals for the D.C. Circuit declined to lift that stay. The plaintiffs—landlords, real estate companies, and trade associations—appealed that decision to the Supreme Court.

Four justices—Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett—thought the stay should be lifted, meaning that Friedrich's decision against the CDC would take effect immediately. Chief Justice John Roberts and four of his colleagues—Stephen Breyer, Elena Kagan, Sonia Sotomayor, and Brett Kavanaugh—disagreed. But Kavanaugh, whose vote against lifting the stay was crucial, said he thought Friedrich was right.

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https://reason.com/2021/06/30/at-least-5-justices-seem-to-think-the-cdcs-eviction-moratorium-is-illegal-scotus-left-it-in-place-anyway/