At Least 5 Justices Seem To Think the CDC's Eviction Moratorium Is Illegal. SCOTUS Left It in Place Anyway.

On May 5, Dabney Friedrich, a federal judge in Washington, D.C., ruled that the moratorium, which applies to tenants who claim financial hardship, is not authorized by the Public Health Service Act, the statute that the CDC cited as the basis for its order.

"Because the plain language of the Public Health Service Actunambiguously forecloses the nationwide eviction moratorium," Friedrich wrote, "The Court must set aside the CDC Order, consistent with the Administrative Procedure Actand D.C. Circuit precedent."

Four justices-Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett-thought the stay should be lifted, meaning that Friedrich's decision against the CDC would take effect immediately.

"Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application to vacate the District Court's stay of its order.In my view, clear and specific congressional authorization would be necessary for the CDC to extend the moratorium past July 31.".

Since the CDC says it does not plan to further extend the moratorium, it is not clear whether the order's legality will ever be definitively resolved.

The D.C. Circuit differed with Friedrich, saying "The CDC's eviction moratorium falls within the plain text" of the Public Health Service Act.

Another federal judge ruled that even Congress does not have the authority to impose a moratorium like the CDC's, because forcing landlords to continue housing tenants who fail to pay their rent exceeds the federal government's power to regulate interstate commerce.
 

https://reason.com/2021/06/30/at-least-5-justices-seem-to-think-the-cdcs-eviction-moratorium-is-illegal-scotus-left-it-in-place-anyway/