By: Danielle Russell

In September 2020, the Centers for Disease Control and Prevention (“CDC”) issued a national moratorium on evictions for missing rent payments in an effort to slow the spread of COVID-19. The federal eviction moratorium (the “Moratorium”) was initially set to expire on December 13, 2020, but Congress extended it through January 2021. President Biden further extended the Moratorium and granted $46.5 billion for emergency rental assistance (“ERA”). The Moratorium lapsed on July 31, 2021, but the CDC announced just days later that a limited Moratorium would run until October 3, 2021. The new extension covered renters living in areas experiencing a spike in COVID-19 infections, including approximately 80% of all counties and 90% of all renters in the United States. However, the Moratorium’s survival fell into the Supreme Court’s hands (“the Court”) after a group of real estate trade groups and landlords in Alabama and Georgia challenged the CDC’s latest extension. 

The Moratorium, being the last remaining federal safety net keeping millions of Americans housed during the pandemic, was invalidated by the Court on August 26, 2021, in Alabama Association of Realtors, et al., v. Department of Health and Human Services. A divided Court sided with the coalition of real estate trade groups and landlords, finding that the CDC lacked authority to institute the latest extension of the federal eviction moratorium. The majority reasoned that America’s “system does not permit agencies to act unlawfully even in the pursuit of desirable ends . . . .” The Court ultimately held that Congress, not the CDC, has the authority “to decide whether the public interest merits further action here.” As a result, the federal eviction moratorium was struck down.

The Court’s decision in the Alabama Association of Realtors case was far from unanimous. Justice Breyer, joined by Justice Sotomayor and Justice Kagan, vehemently dissented. Justice Breyer argued that the CDC’s eviction moratorium should continue, reasoning that “public interest strongly favors respecting the CDC’s judgment at this moment, when over 90% of counties are experiencing high transmission rates.” While the majority opinion focused heavily on the hardships faced by landlords, the dissent focused on the hardships faced by vulnerable populations and compared the landlords’ monetary injuries to the “irreparable harm from vacating the stay.” Justice Breyer was dismissive of the landlords’ injuries because the Moratorium’s instruction requiring renters to make “as close to the full rent payment” as possible, coupled with the $46.5 billion appropriated to help cover rent and rental arrears, significantly lessened such injuries. Overall, the dissent prioritized the interests of public health rather than the interests of landlords.

The CDC has demonstrated that mass evictions will only exacerbate the spread of COVID-19. Justice Breyer cited the chilling fact that “nationally over 433,000 cases and over 10,000 deaths may be traced to the lifting of state eviction moratoria.” The CDC implemented the original Moratorium in the first place to ensure that people could comply with social distancing and stay-at-home orders. The latest extension was specifically tailored to cover those who would be forced into shelters or other jam-packed facilities if evicted to prevent an increase in COVID-19 transmission. On the day the Court struck down the CDC’s latest Moratorium extension, the United States reported 165,870 new cases of COVID-19. Such high case numbers are especially frightening because over six million American households are behind on rent, according to a recent Census Bureau survey. The Court’s tragic ruling will result in an unspeakable number of American people losing their homes, all while the delta variant continues to ravage throughout the country.

The lack of a Moratorium forces Americans to seek recourse via alternative methods. On an individual level, renters who need emergency assistance can visit or call 2-1-1, to obtain information about local assistance programs. Renters can also use a searchable database to find a Treasury ERA program in their locality. Furthermore, state and local governments can still help their constituents, notwithstanding the Court’s recent ruling in the Alabama Association of Realtors case. Localities can assist by creating or extending local eviction moratoriums, enacting more renter protections, or by quickly dispersing ERA funds. For example, on September 2, 2021, Kathy Hochul, the Governor of New York, signed a new moratorium on COVID-related commercial and residential evictions, lasting through January 15, 2022. Not only does New York’s new law protect the most vulnerable populations, it also includes foreclosure protections for homeowners and landlords. Although the Moratorium has lapsed, there are still other resources available for those in need.

The federal eviction moratorium truly highlights the importance of the federal government’s power to protect Americans amidst the ongoing economic and public health crisis. The Moratorium saved millions of households from unsafe and unstable housing situations throughout this seemingly never-ending pandemic. Without such necessary safeguards, Americans now face more uncertainties than before, as they rely on local governments to fix a problem that appears to lack feasible solutions.

Danielle graduated from Arizona State University with a B.S. in both Criminal Justice and Psychology. She is currently a 2L at Arizona State University’s Sandra Day O’Connor College of Law. Her legal interests include criminal justice reform, mental health advocacy, and issues affecting low income families and communities. Her personal interests include spoiling her dachshund, Snoopy, and keeping her houseplants alive.