In a 6-3 decision on party lines, Alabama Assn. of Realtors v. Department of Health and Human Servs., the Supreme Court struck down President Biden’s COVID-19 eviction ban. This decision was unexpected as the Court’s upheld the ban placed by the prior administration which expired last July. The Order was unsigned (“Per Curiam”). Although the lack of a signature does not affect the enforceability of the Order, it is an unusual circumstance seemingly acknowledging the controversial nature of the ruling.
Historically, the Court is relatively flexible toward responses to public emergencies. However, the conservative majority rued such flexibility was no longer warranted. Specifically, that “[v]accine and rental-assistance distribution had improved since the stay was entered, while the harm to landlords had continued to increase.” [Alabama Assn. of Realtors, 584 U.S. at 4-5)]. The dissent countered with statistics, warning that this ruling risks the reemergence of COVID-19 mutations as 92% of U.S. counties have “substantial” and “high” levels of coronavirus transmission with national “average new daily hospital admissions at 12,209.” [Id at 14].
The majority opinion ultimately voided the moratorium under the doctrine of separation of powers, arguing that the 1944 law that delegated power to the CDC is far narrower than what the current administration maintains. Simply put, the Court ruled that the Executive branch did not have legal authority to ban evictions, and that Congress, and Congress alone, could authorize this ban.
As such, please be advised that the ban on evictions is unconstitutional due to its origin not its substance. Should Congress pass a law identical to the CDC’s moratorium, a ban on evictions would most likely be held constitutional.
The full ruling can be read HERE.