On August 26, 2021, the United States Supreme Court upheld a lower court ruling that invalidated the federal tenant eviction moratorium issued by the United States Centers for Disease Control and Prevention (“CDC”). This ruling should end the CDC’s tenant eviction moratorium unless Congress steps in. In Alabama Association of Realtors v. Department of Health and Human Services, the high court upheld the district court’s ruling that that CDC lacks statutory authority for its tenant eviction moratorium. The high court noted that 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.” The per curiam opinion allows to go forward the district court order invalidating the moratorium, which ruling had been stayed by a ruling of the United States Court of Appeals for the D.C. Circuit. The court found the CDC has power to prevent the interstate spread of disease by “identifying, isolating and destroying the disease itself,” and that the “downstream connection between eviction and the interstate spread of disease is markedly different from the direct targeting of the disease that characterizes measures identified in the statute.” The court correctly noted that a reading to permit an eviction moratorium would make it “hard to see what measures this interpretation would place outside CDC’s reach.” The court then offered several specific examples such as free grocery delivery for the sick and free computers for stay-at-home schooling.
Justice Breyer’s dissent raised a number of criticisms. One was that “the CDC’s current order is substantially more tailored than its prior eviction moratorium. . . .” Justice Breyer seems to want to treat this like some kind of constitutional review of narrow tailoring, but this is about statutory interpretation. Better tailoring says nothing about how to read the statute. The dissent also notes a history of health officials containing the spread of disease by preventing the movement of people. It cites a New York Times article from 1920, more than twenty years before the statute in question was enacted. This detour from the subject at hand involved police powers of states, which is entirely different from federal power, which is enumerated and limited. The dissent does, however, cite legislative history of the federal statute under review, but legislative history is not the will of the body that enacted the law and should not resolve questions like this. Finally, Justice Breyer notes the emergency of the delta variant and that COVID-19 cases have spiked in recent weeks. I for one have found interesting courts’ willingness to introduce new evidence not on the record when it protects the government, but not in support of a challenger. For example, one who demonstrates that masks and lockdown orders do no good will not be heard.
Something important is missing from this opinion, which I discuss in my book, COVID-19 Litigation: A Discourse on Nondelegation, Constitutional Rights and Statutory Interpretation.
https://www.amazon.com/COVID-19-Pandemic-Litigation-Constitutional-Interpretation/dp/B09733DTVT/ref=sr_1_1?dchild=1&keywords=COVID-19+pandemic+litigation&qid=1624303183&s=books&sr=1-1
Specifically, there is no discussion anywhere of nondelegation problems. If the court were to adopt Justice Breyer’s statutory reading, there is a serious nondelegation problem. The majority opinion gets to this in a way by warning of the endless and open-ended powers the CDC wou
