Five Supreme Court justices just signaled that the CDC’s eviction moratorium is unlawful. Here’s why that matters.

July 02, 2021 | By STEVE SIMPSON

You may have seen the few news stories reporting that the Supreme Court on Tuesday refused to halt the CDC’s eviction ban. That’s true as far as it goes, but the media missed the real story, which is that five Justices on the Court signaled that they think the CDC’s eviction ban is unlawful.

Which is, of course, exactly what PLF has maintained since the ban was put in place.

Tuesday’s order from the Supreme Court was in response to a motion by the plaintiffs in a suit filed in federal district court in D.C. As in PLF’s cases against the moratorium, the plaintiffs in the D.C. case argued that the CDC does lacks the statutory authority to ban evictions. The law the CDC has invoked to justify the ban allows the secretary of Health and Human Services to take measures to prevent the spread of disease across state lines. Like many statutes, it lists the types of measures Congress had in mind—“inspection, fumigation, disinfection, sanitation, pest extermination” and the destruction of infected animals—and then contains the catch-all phrase “and other measures, as in his judgment may be necessary.”

The plaintiffs argued, as did PLF in our cases, that these “other measures” must be limited to the kinds of things already listed in the statute. Thus, the CDC is probably authorized to institute mask-mandates in interstate transportation, or to ban the interstate sale of infected turtles (as it once did), but restricting evictions in the entire nation is far beyond what Congress had in mind when it enacted the statute. As PLF argued in its suits against the ban, if the CDC can ban evictions because infected tenants may come in contact with people who then cross state lines, then the CDC has the power to control every human interaction in the nation.

Fortunately, the court in the D.C. case agreed with the plaintiffs and struck down the ban. Unfortunately, the court immediately stayed its own order so the government could appeal, thus giving the plaintiffs in that case a pyrrhic victory.

They appealed the stay to the D.C. Circuit Court of Appeals, which upheld it, and then to the U.S. Supreme Court. On Tuesday, the Court denied their application and left the stay—and thus the eviction moratorium—in place. Which is what all the news reports said.

What they didn’t make very clear is that five Justices on the Court almost definitely think the moratorium is unlawful. That’s an odd conclusion to be drawn from an order that leaves the moratorium in place, but it has to do with the combination of dissenting and concurring Justices. Four Justices—Thomas, Alito, Gorsuch, and Barrett—would have overturned the stay, which almost definitely means they think the moratorium is unlawful. Justice Kavanaugh agreed with the majority’s decision to keep the stay in place, but only because the moratorium is set to expire at the end of July and he believed leaving it in place “will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds.” But he also bluntly stated that he “agree[s] with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium.”

I’m no fan of Justice Kavanaugh’s pragmatic stance, but it’s big news that five Justices on the Court likely think the CDC went too far. It’s hard to say whether it will ultimately make a difference in the cases challenging the CDC ban, because the government will no doubt argue that the cases are all moot, once the moratorium expires. However that question is resolved, the Court’s order in this case could well signal the Court is more willing to rein in the administrative state, at least in cases where agencies aggressively and expansively interpret their own power.

Perhaps it’s premature to draw that conclusion. But PLF’s win in Cedar Point, among other things this Court has done, seem to indicate that we have a Supreme Court that is more open to restraining government and protecting liberty than at any time in recent history.

We’ll know soon enough, as PLF will keep pitching good opportunities to the Court to right many of the wrongs of its predecessors.