THE UNITED STATES SUPREME COURT ENDS THE CDC FEDERAL EVICTION MORATORIUM

By Jennifer L. Alexander, Esq. August 27, 2021 Posted in Landlord/Tenant Law Share

On August 3, 2021, the CDC issued a new eviction moratorium (you can read our blog about the CDC eviction moratorium here). In that blog, we commented that “questions regarding the constitutionality of the CDC’s new order” remained. It so happens that the United States Supreme Court agreed with our assessment. As of yesterday, August 26, 2021, the United States Supreme Court officially ended the CDC’s eviction moratorium.

The CDC moratorium restricted evictions for nonpayment of rent in those counties with “substantial and high transmission” of COVID‑19. As of today, the CDC moratorium would have prohibited nonpayment-related evictions in many jurisdictions throughout the country. These evictions would be banned throughout all of New Jersey and Pennsylvania and everywhere in New York except for Clinton County (you can view the CDC’s current data on county transmission levels here).

Notably, the day after the CDC issued this moratorium, August 4, 2021, Governor Murphy signed NJ SB 3691/A.B. 5685 (2021) into law. That legislation, inter alia, is set to end New Jersey’s eviction moratorium in waves based on a tenant’s income level beginning August 31, 2021. However, the CDC moratorium essentially stalled the end of New Jersey’s eviction moratorium (you can read our blog about that legislation and the delay in its effectiveness here). However, yesterday’s Supreme Court decision means that New Jersey’s moratorium can end on schedule.

Yesterday, the Supreme Court issued a sixteen (16)-page, per curiam decision in Ala. Ass’n of Realtors v. HHS, No. 21A23, 594 US ____, 2021 US LEXIS 3679, 2021 WL 3783142 (Aug. 26, 2021). The CDC had based its authority to issue the moratorium on 42 USCA § 264(a), which authorizes the Surgeon General to make and enforce regulations “necessary to prevent the introduction, transmission, or spread of communicable diseases.” Id. However, the Supreme Court did not believe that this power was extensive enough to permit the CDC moratorium.

In the decision, the Court opined that it expects “Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Ala. Ass’n of Realtors, supra at *8, 2021 WL 3783142, at *3 (internal quotations and citations removed). However, as Congress had not explicitly authorized the CDC to issue its recent moratorium, the CDC had exceeded its authority.

At least 80% of the country, including between 6 and 17 million tenants at risk of eviction, falls within the moratorium. . . . And the issues at stake are not merely financial. The moratorium intrudes into an area that is the particular domain of state law: the landlord-tenant relationship.

Id. The Court determined that, since the enactment of 42 USCA § 264(a), “no regulation premised on it has even begun to approach the size or scope of the eviction moratorium.” Id., at *9, 2021 WL 3783142, at *4. In fact, pursuant to other court decisions, “Congress was on notice that a further extension [of the moratorium] would almost surely require new legislation.” Id., at *10, 2021 WL 3783142, at *4.

The ultimate reality of the Supreme Court’s decision is that, for the CDC moratorium to stay in effect, Congress must explicitly authorize it.

As a result, beginning August 31, 2021, New Jersey’s eviction moratorium will start winding down unless the New Jersey Legislature or the Governor delays its end through new enactments. There is likewise no eviction moratorium in effect in Pennsylvania on a statewide level. Certain aspects of the eviction moratorium are being questioned in New York (as explained in our blog here). Still, the federal moratorium will no longer provide this additional level of protection to New York residents.

We will continue to monitor the various regulations as they are extended, ended, or interpreted by the courts. If you have any questions, please contact our office.

The information in this Client Alert is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular circumstances. Each legal matter is unique, and prior results do not guarantee a similar outcome.

To schedule a consultation with an attorney, contact Griffin Alexander, P.C. at 973-366-1188 or through our website here!

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THE UNITED STATES SUPREME COURT ENDS THE CDC FEDERAL EVICTION MORATORIUM

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