Yesterday the U.S. Supreme Court issued a decision in Alabama Association of Realtors v. Department of Health and Human Services, affirming what Pacific Legal Foundation has argued on behalf of landowners for nearly a year—that the Centers for Disease Control and Prevention lacked the constitutional authority to enforce its nationwide eviction moratorium.
As if confirming that point, the Fifth Circuit Federal Court of Appeals granted an injunction for PLF’s clients, Chambless Enterprises LLC and the Apartment Association of Louisiana.
Chambless Enterprises owns and manages rental properties in Monroe, Louisiana. Since last fall, Chambless has been unable to evict non-paying tenants because of the CDC eviction moratorium. As of August 18, their non-paying tenants owed more than $26,000 in back rent—and that’s notwithstanding their efforts to obtain federal rental assistance funds. Not only has the eviction moratorium had an economic impact, but it has taken away Chambless’ ability to do upgrades on its units because the moratorium abrogated private property rights. In March, PLF’s victory in Skyworks v. CDC represented the first in a series of decisions holding that the CDC was exceeding its authority—now culminating with the Supreme Court’s decision in Alabama Association of Realtors.
At the same time PLF has pursued an appeal in Chambless v. CDC, where they’ve sought an injunction (in other words, a stop order) to prevent the government from enforcing the eviction moratorium against Chambless Enterprises and members of the Apartment Association of Louisiana. The Supreme Court decision makes clear the judicial writing on the wall. As the Supreme Court put it, “it is difficult to imagine [the landlords] losing.”
As PLF argued, the government cannot foist the economic burdens of the pandemic on a single group, especially considering landlords solve the very problem the government is concerned about: providing housing so that people can socially distance. The decision agrees: “The moratorium has put the [Realtors], along with millions of landlords across the country, at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery. Despite the CDC’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means. And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership—the right to exclude.”
It also bears mention that nearly every court to address the issue has found that the CDC’s construction would raise very serious constitutional problems if accepted. That is because it would confer upon the CDC director what the Sixth Circuit Federal Court of Appeals dubbed “near dictatorial powers for the duration of the pandemic, with authority to shut down entire industries as freely as she could ban evictions.” Indeed, we have argued that if Congress really were to give such a blank-check of regulatory power, it would violate the non-delegation doctrine.
The Supreme Court’s decision and the Fifth Circuit’s decision granting an injunction to PLF’s clients stands as a firm rejoinder to the government that “our [constitutional] system does not permit agencies to act unlawfully even in pursuit of desirable ends.” The fact is that Congress knows how to enact an eviction moratorium when it wants to do so. The CARES Act imposed a short-term moratorium. Likewise, Congress enacted legislation (signed by then-President Trump) imposing a moratorium by statute in January 2021. But the CDC cannot simply act on its own accord to impose a moratorium just because it thinks that act to be good policy. In our system, it is the role of Congress—and Congress alone—to decide what the law should be, and to weigh competing policy judgments.