Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, No. 20-cv-03377 (D. D.C.).
Emergency! Last spring plaintiff realtors and related organizations were successful in persuading the U.S. District Court for the District of Columbia that the September, 2020, Order of the Centers for Disease Control imposing a national moratorium on evictions was without authority. The court found no authority for such a sweeping measure in the public health law that served as the order’s premise, nor could the court find any legislative delegation of authority that would permit the Centers for Disease Control to criminalize rental property evictions.
The D.C. District Court vacated, yet stayed, its order pending review. The U.S. Court of Appeals for the District of Columbia Circuit refused to disturb the federal district court’s determinations, and the United States Supreme Court denied emergency review.
The denial of review, however, came with Justice Kavanaugh’s concurring caveat: he agreed that the eviction moratorium order was unconstitutional but sensed that it was best to let the order lapse of its own accord at the end of July, as the Centers for Disease Control represented to the Supreme Court that the moratorium would not be extended further.
Post-Moratorium Hubbub in the Executive and Legislative Branches. The President of the United States stated publicly that he had been advised that the eviction moratorium was unconstitutional. A valid moratorium would require, as Justice Kavanaugh pointed out, legislative authority, which Congress failed to enact.
The President begged the states to disburse the $45,000,000,000 that the federal government had provided in assistance to troubled tenants but which appears to have been bogged down in bureaucracies.
This Time It’s Different. On August 3, 2021, the Centers for Disease Control issued a new order prohibiting evictions in areas deemed to be highly affected by a variant of the contagious Covid-19 virus that prompted the initial moratorium. This “Delta” variant, the Centers for Disease Control has predicted, is highly contagious and its threat to interstate transmission justifies federal intervention on a limited basis, which the Centers for Disease Control now sets at about 80% of all counties nationally or 90% of all rental housing in the United States.
Lack of Constitutional Authorization Remains. Plaintiffs argue that the fundamental lack of authorization for the Centers for Disease Control’s new order persists: no geographic or statistical tinkering can imbue the order with the constitutional soundness it lacks.
It’s Not the Principle of the Thing, It’s the Money. That the Executive Branch is in accord with the view that the prior order was unconstitutional makes the new order all the more curious except that the President has stated that he hopes that litigation will buy some time to move relief to intended recipients.
Fuzzy Math. The U.S. Department of Health and Human Services, of which the Centers for Disease Control is a component, has opposed emergency relief now because, the government argues, the plaintiffs’ assertion that the precedent it finds in Justice Kavanaugh’s concurrence is not precedent at all. The government argues that a concurrence that can be seen as aligned with those who would have granted relief cannot transform the minority of judges who would have granted review into a majority.
As Then, So Too Now. Defendants argue that as there is no Supreme Court precedent binding the district court the law requires that the D.C. Circuit Court of Appeals opinion on the stay controls. The district court should not disturb its earlier stay, the government argues, but the court must recognize that its earlier vacatur of the first CDC order is of no moment, either, as circumstances have so changed that the court’s initial conclusions would not apply now.
Deference, Please. Moreover, the Centers for Disease Control submit that the district court should abstain from any action to permit the Solicitor General of the United States to determine whether to seek emergency review in the D.C. Court of Appeals or the United States Supreme Court.
There May Be More to Come. The plaintiffs may file a reply to the government’s opposition by August 6, but at this time none is of record.
Centers for Disease Control Order Dated August 3, 2021:
Realtors’ Emergency Motion:
Emergency Motion to Enforce the Supreme Court’s RulingyDefendants’ Opposition
Defendants’ Opposition to Plaintiffs’ Emergency Motion
Order of U.S. Supreme Court Denying Review of Eviction Moratorium
Just Lawful 