Democrats are in disarray over the end of the Centers for Disease Control and Prevention eviction moratorium, and some on the Left are trying to blame the Supreme Court for the mess.
“The lapsed eviction moratorium is the Supreme Court’s fault,” Ian Millhiser writes at Vox, and “The Supreme Court Caused the Looming Eviction Disaster,” adds Slate’s Mark Joseph Stern.
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Nothing could be further from the truth.
The reality is, with Democrats controlling the House, Senate, and White House, all they would have needed was a simple one-sentence bill to give the CDC the authority it needs to continue the eviction moratorium. For whatever reason, the Democrats never even tried to pass such legislation.
Here is how we got here.
On March 27, 2020, then-President Donald Trump signed the CARES Act, which, among other things, included a 120-day eviction moratorium for rental properties that participated in federal assistance programs or were backed by federal loans.
After that moratorium expired, on August 8, 2020, Trump issued an executive order directing the Department of Health and Human Services and the CDC to “consider” temporarily halting all residential evictions. Less than a month later, citing authority given to them by 42 U.S. Code § 264(a), the CDC issued a “temporary halt in residential evictions” that ran through December 31, 2020.
Without changing the text of 264(a), Congress then extended the CDC’s order first through January 31, 2021, then through March 31, 2021, and finally through June 30, 2021.
In November 2020, however, a group of plaintiffs, including the Alabama Association of Realtors, sued to stop the eviction moratorium, arguing that the CDC exceeded its statutory under 264(a). In May 2021, a federal district court found for the realtors, and the case eventually made it to the Supreme Court, where Justices Samuel Alito, Amy Coney-Barrett, Neil Gorsuch, and Clarence Thomas voted to end the moratorium immediately. Justice Brett Kavanaugh, however, gave Congress one month, until July 31, to give the CDC specific authority for the program.
The statute in question, 42 U.S. 264 reads:
The Surgeon General, with the approval of the Secretary, 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.
The Biden administration argued that the first sentence of 264(a) gave the CDC the power to do basically whatever it wanted to prevent the transmission of diseases without any limits. The realtors argued that 264(a)’s second sentence was clearly included to describe what specific powers the CDC had to prevent transmission of diseases and that an eviction moratorium clearly was not listed in the statute.
Progressives may take issue with the district court’s and the Supreme Court’s reading of the extent of power granted to the CDC under 264(a), but it is undeniable that both the district court and Justice Kavanaugh believed it was in the power of Congress to change 264(a) so that the statute did grant the CDC the power to issue a nationwide eviction moratorium.
But for whatever reason, Democrats who control the House, the Senate, and the White House chose not to touch 264(a). They had an entire month to act, and they chose not to.
The failure of Congress and the White House to legislate is not the Supreme Court’s fault. It is the Democrats’ fault. They have no one to blame but themselves.
