Law360 — The latest Centers for Disease Control and Prevention moratorium on residential evictions is likely to face swift legal challenges, and the U.S. Supreme Court, with one justice having recently said legislation was required for the ban to continue into August, could soon weigh in on the matter.
The CDC’s prior ban on residential evictions, a cornerstone of the federal government’s response to the COVID-19 pandemic, expired July 31, and earlier this week the White House said the CDC had found no legal grounds for an extension. But on Tuesday, the CDC took a 180-degree turn in issuing a new moratorium.
Experts expect prompt challenges to the latest ban, particularly given that Justice Brett Kavanaugh in June said an extension of the CDC ban could only be done through Congress. Earlier this week, it appeared the CDC was also of that mindset, until it changed course Tuesday and issued the new ban.
“Clearly, there’s going to be a court challenge. It will likely be in federal court. Some might try state courts first,” said Alan Kipnis, a partner at Government Law Group in Fort Lauderdale, Florida. “I think it will start in the federal court and very likely could go up to the Supreme Court on a fast-track basis.”
The latest CDC moratorium, which applies only to areas where COVID-19 cases are soaring, will cover roughly 90% of the U.S. population. It’s set to remain in effect until Oct. 3.
The CDC ban comes just over a month after the Supreme Court in Alabama Association of Realtors et al. v. U.S. Department of Health and Human Services et al. denied a request to lift a prior CDC moratorium. However, Justice Kavanaugh at that time said “clear and specific congressional authorization (via new legislation)” was required to extend the ban beyond the end of July.
“Although the Supreme Court’s June 29th decision did not directly resolve the CDC’s authority to extend the eviction moratorium, given Justice Kavanaugh’s concurring opinion on the procedural questions of whether a stay should have been granted, it is foreshadowed that … the Supreme Court would likely ultimately conclude that the CDC lacked authority if the issue comes directly to it,” said Bonnie Hochman Rothell, a partner and chair of the litigation practice at Morris Manning & Martin LLP.
Justice Kavanaugh in the Alabama Association of Realtors case said he believed the CDC had overstepped its authority with its prior ban, but sided with Chief Justice John Roberts and the three liberal members of the high court in the 5-4 decision, explaining that he voted the way he did to let the process of allocation of federal funds play out over the course of July and let the ban expire as planned, at the end of July.
Representatives at the CDC and the White House couldn’t be immediately reached for comment Wednesday on the latest CDC moratorium.
“I would anticipate that any CDC action will also be found to be contrary to the law,” said Simon Adams, a partner at Nossaman LLP. “That decision will need a plaintiff that wants to challenge this and a court decision will be delayed due to the speed of the courts.”
The jury remains out on just who might challenge CDC’s latest ban.
While the Alabama Association of Realtors was unsuccessful in its challenge to an earlier moratorium, would-be plaintiffs could have more success now, particularly at the Supreme Court level given Justice Kavanaugh’s recent comments.
Kipnis said the range of potential plaintiffs is broad, from the ACLU on one end to national apartment owners organizations on the other.
“Any one of those organizations could challenge, and probably will challenge,” Kipnis said.
While experts point to Justice Kavanaugh’s remarks, lawyers’ warnings of looming challenges are also highlighting the difficulties landlords are having, given the pressures on them to pay their mortgages.
Ruth Shin, founder and CEO of PropertyNest, noted the difficulties small landlords have faced.
“In the past year, landlords still had to pay their bills while dealing with rent losses … [and] government initiatives need to support both — renters and landlords — to achieve a sustainable long-term recovery,” Shin said. “The extension could be challenged by landlords and property owners.”
–Additional reporting by Hailey Konnath and Jimmy Hoover. Editing by Emily Kokoll and Orlando Lorenzo.
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