Friday, August 27, 2021

FYI: SCOTUS Ruling Effectively Ends CDC's Eviction Moratorium

In a per curiam opinion, the Supreme Court of the United States recently held that the Director of the Centers for Disease Control and Prevention (CDC) exceeded its authority when it "imposed a nationwide moratorium on evictions of any tenants who live in a county that is experiencing substantial or high levels of COVID–19 transmission and who make certain declarations of financial need."


In so ruling, the SCOTUS vacated a stay on enforcing a similar ruling against the CDC by the trial court pending appeal.  According to the Legal Information Institute, a "per curiam" opinion is one that is "issued in the name of the Court rather than specific judges." 


This SCOTUS ruling renders the lower court's judgment against the CDC enforceable, and effectively ends the CDC's eviction moratorium.


A copy of the opinion is available at:  Link to Opinion 


As you may recall, Congress passed the Coronavirus Aid, Relief, and Economic Security Act in March of 2020 that among other things "imposed a 120-day eviction moratorium for properties that participated in federal assistance programs or were subject to federally backed loans."  Congress did not extend this original 120-day period.


In July of 2020, the CDC issued its own moratorium "covering all residential properties nationwide and imposing criminal penalties on violators" until December 31, 2020.  Congress extended the CDC's moratorium by one month as part of the second COVID–19 relief act.  When this Congressionally authorized period expired, the CDC extended its moratorium several times and ultimately through October 3, 2021.


Several real estate broker organizations and property managers brought suit against the CDC, and obtained a judgment from the U.S. District Court for the District of Columbia vacating the CDC's moratorium.  However, the trial court stayed its ruling pending appeal. 


The U.S. Court of the Appeal for the District of Columbia Circuit twice declined to lift the trial court's stay.  The SCOTUS now vacated the stay.


The CDC relied the Public Health Service Act, enacted in 1944, for authority to promulgate and extend its eviction moratorium. The relevant provision states:


The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.  For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.


See 42 U.S.C. § 264(a).


The SCOTUS noted that this provision has been invoked to promulgate regulations "quarantining infected individuals and prohibiting the import or sale of animals known to transmit disease," but "never before to justify an eviction moratorium."  In fact, the Court observed that "[r]eading both sentences together, rather than the first in isolation, it is a stretch to maintain that [42 U.S.C. § 264(a)] gives the CDC the authority to impose this eviction moratorium."


The SCOTUS also noted that "[o]ur precedents require Congress to enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power and the power of the Government over private property." United States Forest Service v. Cowpasture River Preservation Assn., 590 U. S. ___, ___–___ (2020) (slip op., at 15–16).


Accordingly, the SCOTUS held that "[i]t would be one thing if Congress had specifically authorized the action that the CDC has taken. But that has not happened. Instead, the CDC has imposed a nationwide moratorium on evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination," and "[i]t strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts."


"Indeed, the Government's read of [42 U.S.C. § 264(a)] would give the CDC a breathtaking amount of authority. It is hard to see what measures this interpretation would place outside the CDC's reach, and the Government has identified no limit in [42 U.S.C. § 264(a)] beyond the requirement that the CDC deem a measure 'necessary.'"


The SCOTUS also noted that "[s]ince the District Court entered its stay, the Government has had three additional months to distribute rental-assistance funds to help ease the transition away from the moratorium."


In addition, the Court noted that "[i]t is indisputable that the public has a strong interest in combating the spread of the COVID–19 Delta variant. But our system does not permit agencies to act unlawfully even in pursuit of desirable ends. ...It is up to Congress, not the CDC, to decide whether the public interest merits further action here."


Accordingly, the SCOTUS granted the plaintiffs' application to vacate the stay, thereby rendering the lower court's judgment against the CDC enforceable and effectively vacating the CDC's eviction moratorium.




Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 6th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874


Admitted to practice law in Illinois




Alabama   |   California   |   Florida   |   Georgia   |   Illinois   |   Massachusetts   |   New Jersey   |   New York   |   Ohio   |   Pennsylvania   |   Tennessee   |   Texas   |   Washington, DC



NOTICE: We do not send unsolicited emails. If you received this email in error, or if you wish to be removed from our update distribution list, please simply reply to this email and state your intention. Thank you.

Our updates and webinar presentations are available on the internet, in searchable format, at:


Financial Services Law Updates




The Consumer Financial Services Blog