Alabama Associaion of Realtors, et al. v. U.S. Department of Health and Human Services, et al., No. 21A23. Response of the United States submitted August 23, 2021.
Today the United States submitted to the Supreme Court its view that the judicial stay of an order vacating the Centers for Disease Control (CDC) Eviction Moratorium must remain in place during pending litigation. The government argues that the circumstances surrounding the August 3, 2021 order halting certain evictions differ from those presented during the first, and later extended, moratorium order. The government argues that equity favors the stability the stay provides, while the realtors and landlords impacted by the CDC orders cannot establish that they will be irreparably harmed by preserving the status quo.
Times Have Changed. The United States disputes the conclusion reached by the United States District Court for the DIstrict of Columbia that the August 3, 2021 is materially the same as its predecessor, pointing to the emergence of the highly transmissible Delta variant of the Covid-19 virus, which, the government submits, provided the impetus for issuing a new CDC eviction moratorium order days after an earlier order, determined to have been unconstituional, lapsed by its own terms. In support of its position, the government points to a reported increase in illness subsequent to the issuance of the new moratorium.
Neither the September, 2020 nor the August, 2021 CDC Orders Is Legally Flawed. The United States, on behalf of the Department of Health and Human Services (HHS) and its component, the Centers for Disease Control, argues that the legislature conferred upon HHS broad powers to take measures to inhibit the spread of contagious diseases, including the implementation of the eviction moratorium. Given that HHS may plainly issue orders of quarantine, it would be unseemly to conclude that HHS could not forbid landlords from evicting tenants during a pandemic.
The idea that the legislature needed to be more specific in its delegation of powers cannot succeed, the United States observes, where the 2021 Appropriations Act relied upon the legislation authorizing emergency public health measures in order to appropriate funding to make landlords whole. This incorporation recognizes the aptness of reliance on the earlier legislation, making further legislative specificity unnecessary.
Neither Commerce Clause nor non-delegation arguments can prevail where it has been established that measures inhibiting the interstate transmission disease are permitted and where broad powers to act “in the public interest” have been upheld.
The Moratorium Suits the Circumstances. In ordering relief from forced evictions, the CDC observed that evictions would force persons and families into homelessness, causing them to be housed in temporary shelters or other places where crowding would increase the risk of contagion. Most importantly, the government argues, the August 3, 2021 order applies only where there exist high risks of contagion and only to those unable to meet their obligations to their landlords.
The Greatest Good for the Greatest Number. The government and the people will suffer greatly if the government’s current plan to freeze evictionsis disturbed. Property owners, on the other hand, have not been able to provide reliable evidence of their losses, for which, in any case, the government has promised financial assistance.
What Might Have Been Is Not What Is. The United States resists the position taken by realtors and landlords that Judge Kavanaugh’s observation that he would have granted review earlier if he were not assured that the eviction moratorium would expire at the end of July now compels the Supreme Court to grant review and to vacate the stay. Remarks made in support of denying review cannot now be transformed into an indication that review would have been granted had matters been otherwise. Not only do new facts support the new CDC measures, but in the absence of a controlling opinion a litigant may not, by pointing to a concurrence in support of an earlier denial of review, later recast that concurrence as a vote supporting review.
Time of Ruling Unknown. The case docket does not now disclose any activity beyond the present submissions of the parties.