Landlords return to Supreme Court over Biden eviction moratorium

Landlords aiming to strike down the Biden administration’s evictions moratorium have returned to the Supreme Court, telling the justices that Congress never gave the Centers for Disease Control and Prevention the “staggering amount of power” it claimed in renewing the evictions ban.

A group of landlords from Alabama and Georgia argued in the court filing that the CDC claims “unqualified power to take any measure imaginable to stop the spread of any communicable disease — common cold included — whether it be eviction moratoria, worship limits, nationwide lockdowns, school closures or vaccine mandates.”

“But Congress must expressly and specifically authorize an agency to resolve major policy questions before it can do so,” they said.

The Biden administration filed a response with the court on Monday afternoon, arguing the eviction moratorium was extended in August due to the spread of the delta variant and should remain in place.

The administration also said the current moratorium is more targeted than the prior orders, applying to only areas with a significant number of COVID-19 cases. 

“The trajectory of the pandemic has since changed — unexpectedly, dramatically, and for the worse,” the DOJ court filing argued.

The dispute returned to the justices after a federal appeals court in Washington declined to halt the eviction moratorium on Friday, which is set to remain in place through October.

The landlords, who have not been able to remove tenants who can’t pay their rent, have been challenging the moratorium since last year, asking federal judges to block its enforcement.

Patrick Newton, communications director for the National Association of Realtors, said the group was disappointed in the appeals court ruling and will continue to fight for “mom-and-pop housing providers.”

“With a majority of the Supreme Court in agreement that any further extension of this eviction moratorium requires congressional authorization, we are confident and hopeful for a quick resolution. Moving forward, federal and state governments should be focusing all energy on the swift distribution of nearly $50 billion in rental assistance available for struggling tenants,” he said.

Property owners across the country, including struggling mom-and-pop operators, have been asking the nation’s courts why landlords are expected to take a financial hit while nonpaying tenants are protected by the moratoriums.

In June, the Supreme Court voted 5-4 to leave the eviction moratorium in place.

Justice Brett M. Kavanaugh said he thought the government had overreached, although he voted with the majority leaving the moratorium intact until July 31, the previous expiration date of the eviction ban.

In the order, Justice Kavanaugh said the CDC, which ordered the moratorium, would need congressional authority to extend the ban beyond July 31.

He said he did not move to strike down the moratorium immediately because “those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds.”

Justices Amy Coney Barrett, Neil M. Gorsuch, Samuel A. Alito Jr. and Clarence Thomas would have voted to strike down the ban on evictions immediately.

The CDC, which ordered the moratorium because of the shutdowns prompted by COVID-19, extended its ban past July 31 because of the spread of the highly contagious delta variant after pressure from liberal politicians.

The moratorium was first issued in September 2020 under former President Donald Trump, and the government has continued to renew it.