Protection for struggling tenants ends as Supreme Court voids CDC eviction moratorium

Defaulting renter with face mask receives letter giving notice of eviction from home on wooden table

NC Attorney representing tenants calls the ruling “cruel and horrific”

Hundreds of thousands of North Carolina households behind on rent lost an important legal protection, when the U.S. Supreme Court struck down the eviction moratorium issued by the Centers for Disease Control and Prevention in a 6-3 decision on Thursday.

The CDC stay on eviction, first issued by the Trump Administration in September 2020, was extended multiple times to expire at the end of July. On June 29, Justice Brett Kavanaugh became the pivotal vote in the 5-4 decision to let the moratorium run its course, denying the plaintiff Alabama Association of Realtors’ motion for emergency relief.

As Policy Watch previously reported, Kavanaugh said the CDC “exceeded its existing statutory authority by issuing a nationwide moratorium.” Yet he spared the federal rule given that the it was about to end in a month, to allow for the distribution of rental relief funds, he explained.

However, the CDC issued another eviction moratorium for two months starting August 3 that halts evictions in areas with “substantial and high levels of community transmission levels” of the coronavirus.

The plaintiffs came back with a new challenge, again green lighted by the D.C. District Court, and then sought an emergency injunction from the Supreme Court against the CDC order.

This time, Kavanaugh and his colleague Chief Justice John Roberts joined the four justices who previously ruled in favor of the plaintiffs.

The majority wrote in the opinion, “Apart from slightly narrowing the geographic scope, the new moratorium is indistinguishable from the old.”

However, the six justices reasoned that there was a need to vacate the eviction moratorium, considering the votes in the previous case and the situation across the country. The opinion read, “equities had shifted in the plaintiffs’ favor: Vaccine and rental-assistance distribution had improved since the stay was entered, while the harm to landlords had continued to increase.”

The six justices nominated by Republican presidents, including three nominated by Trump, took a narrow interpretation of the CDC’s authority granted by the Public Health Service Act to say its authority relates more to regulating quarantines and imports. They also said the moratorium interferes with the landlord-tenant laws within purview of individual states.

Gov. Roy Cooper’s moratorium, which first went into effect in October 2020, is no longer in effect. It would have added another layer of protection by preserving the requirements of the federal moratorium should the CDC order expire. However, the Republican-controlled Council of State rejected his request for a renewal the day the earlier SCOTUS decision was handed down, as Policy Watch previously reported.

Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor, dissented in the case, writing that the court merely vacated a stay on the eviction moratorium without hearing any oral argument.

The three said the monetary losses claimed by the plaintiffs could still be recovered, as the CDC moratorium requests that tenants pay back their owed rents. They urged the majority to compare the landlords’ financial loss to the toll that COVID-19 is taking. “The public interest strongly favors respecting the CDC’s judgment at this moment, when over 90% of counties are experiencing high transmission rates,” the dissent read.

Nationwide, only 11% of the rental relief has been distributed, and seven million tenants are relying on the eviction moratorium to shore them up while they wait, according to the National Coalition for a Civil Right to Counsel.

In North Carolina, the Delta variant has caused another surge of COVID cases. On August 26, North Carolina daily new cases topped 8,600 for the first time in months. A month ago, the number was 1,401. Hospitalizations have tripled to exceed 3,500, compared to early July figures.

Kathryn Sabbeth, a law professor at UNC-Chapel Hill, called the decision “cruel and horrific.”

“There are people right now [against whom] the writ of possession was already issued and the sheriff is going to go out and throw them in the street now, like right now,” she said.

She urges judges to step up and help settle the cases through diversion and mediation programs. Sabbeth maintained that tenants still have their basic rights. It is well established that it’s illegal for landlords to lock people out without a court order and sheriffs’ execution, she said. The CARES Act has a key provision that requires landlords to give 30-day eviction notice for housing backed by federal mortgages or subsidies.

Tenants can apply for rental assistance to avoid nonpayment eviction and seek legal representation in court.

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