To Evict or Not To Evict? Alabama Association of Realtors v. Department of Health and Human Services (2021) and Its Sociological Implications

Eviction moratoria have long been the hallmark of both former President Donald Trump’s and current President Joe Biden’s responses to the COVID-19 pandemic. [1,2] Nonetheless, they have engendered substantial controversy. Opposition has stemmed primarily from landlords, who ostensibly stand to incur significant financial losses without a way to enforce renter payments. Legal scholars, too, question whether current statutes even furnish the CDC with the authority to promulgate eviction moratoria at all.

In August, these issues culminated in one of the Supreme Court’s most controversial cases in recent months, Alabama Association of Realtors v. Department of Health and Human Services (2021). [3]  In this case — which did not undergo formal oral argument — the Court invalidated the latest iteration of the CDC-enacted nationwide eviction moratorium. The per curiam decision, rendered on fairly narrow procedural grounds, made little sense from an epidemiological perspective, especially at a time when COVID-19 cases were surging nationwide. But even from a legal perspective, Alabama Realtors was poorly conceived and wrongly decided. Stepping back even further, the ruling also indicates troubling signs of this new Court’s unreasonable bureaucratic suspicion and inappropriate use of the shadow docket.

To assess Alabama Realtor’s merits, it is useful to understand the case’s relevant legislative and procedural history. In March 2020, Congress’s first COVID-19 relief act included a 120-day eviction moratorium targeted for properties subject to federal assistance programs or federally backed loans.[4] Upon expiration, the CDC unilaterally extended and expanded the federal eviction moratorium, adding a criminal penalty provision for noncompliance.[5] The moratorium was eventually extended by Congress as part of President Biden’s 2021 American Rescue Plan Act, but when this iteration of the moratorium expired, the CDC again reinstated the order, three more times.[6,7,8] Under political pressure from congressional progressives and with the legality of these extensions in question, however, the CDC issued in August a 60-day moratorium that applied to 80% of U.S. counties experiencing “substantial or high COVID-19 community transmission.” [9] 

This most recent CDC order, and its permissibility under the Public Health Service Act, stand at the center of Alabama Realtors. The U.S. District Court for the District of Columbia accepted the plaintiffs’ arguments and invalidated the moratorium, but “stayed its judgement while the Government pursued an appeal.”[10] The Supreme Court, however, decided to “vacate th[e] stay” and therefore invalidate the moratorium, reasoning that a stay was “no longer justified” pursuant to the factors it considers in applications for stay.[11] The Court first considered whether it was “demonstrably clear” that the CDC possessed the authority to issue eviction moratoria under the Public Health Service Act.[12] Second, the Court considered whether the “balance of equities” between the plaintiffs and defendants favored leaving the stay, and therefore the moratorium, in place.[13] Finally, the Court examined the public’s interest in granting or vacating the stay — that is, keeping in place or eliminating the federal eviction moratorium. In answering all three questions, the Court ruled against the government, but wrongly so. Indeed, the Court erred categorically.

Despite the Court’s ruling to the contrary, it is not “demonstrably clear” that the CDC lacks the power to promulgate eviction moratoria.[14] The Court rested its improper ruling on section 361(a) of the Public Health Service Act, which accords the Surgeon General of the United States, as well as the CDC, the authority to “make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.”[15] To enforce such regulations, the Surgeon General “may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.”[16] The Court held that a reading of this statute as sanctioning a CDC-enacted moratorium would confer upon the agency a “breathtaking” amount of power. The Court reasoned, instead, that the latter half of this statute serves to circumscribe possible disease-prevention actions to “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles.”[17] Unlike these listed examples, per the Court, the CDC’s moratorium was not directly related to the prevention of community transmission. 

But even the most fervent textualist cannot deny that section 361(a) explicitly defers to the “judgement” of the CDC in determining the “necessary” course of action to stopping viral transmission — twice. Reading past the list that allegedly constrains the CDC’s actions, the rest of the statute clearly defers to the CDC’s “judgement” — not that of Congress or the courts — to determine what “measures” it might take. The list, therefore, serves less as a menu of options from which the CDC must choose and more as a set of examples from which the CDC may depart given its public health expertise. 

Perplexingly, the Court expects a high degree of precision in the legislation. But the reality of this statute, and other health laws like it, makes such precision impossible. As the COVID-19 pandemic has so well illuminated, infectious disease is unpredictable, and no one set of responses necessarily applies in every situation. Thus, the expansiveness of section 361(a) is instrumental in allowing the government’s public health experts to adjust — even radically — their mitigation strategies. Indeed, any suggestion to the contrary would seriously subvert the purpose of this law — and not to mention be absurd. No one could reasonably expect Congress in 1940 to guess, let alone foresee, the nature of infectious disease prevention in 2021. But even if these practical considerations are unpersuasive to the most ardent originalist, consider the statements of statute’s original drafters. Indeed, the historical records evinces that they had no intention of constraining the broad authority they conferred upon the CDC, according to Justice Breyer.[18] It is certainly far from “demonstrably clear,” therefore, that the CDC contravened its authority by instituting an eviction moratorium, even accounting for the original intent of its empowering statute. If anything, both a textualist and originalist reading of the case counsel a decision strongly in favor of the CDC.

But do the “balance of equities” between the plaintiffs and defendants favor leaving the stay intact, and accordingly the moratorium? The Court naturally said no, reasoning that landlords’ interests remain high, while the government’s have decreased. Acknowledging the numerous landlords with modest means, the Court determined the losses they would incur would be “significant.”[19] The Court also adduced Congress’s inaction toward the moratorium to demonstrate the institution’s minimal interest in the policy.

But suggesting that such inaction indicates the legislative branch’s disinterestedness in eviction moratoria distorts reality. If anything, congressional inaction merely reflects partisan gridlock, not a categorical rejection of the policy. However, setting aside the Court’s peculiar legislative inaction argument, the government still retains considerable interest in upholding the moratorium. Even with the widespread availability of safe and effective COVID-19 vaccines, vaccine hesitancy remains, especially among those who identify as Republican.[20] And though COVID-19 vaccines provide the vaccinated with a high degree of immunity to serious illness and death, more COVID-19 deaths have occurred in 2021 — when a vaccine became available — than in 2020,[21] due primarily to low vaccine uptake among a sizable portion of the American populace. Eviction moratoria, by contrast, have been shown to curb the spread of COVID-19.[22] Given the human and economic toll of increased COVID-19 cases and deaths and the threat evictions pose to undermining the progress the U.S. has made, eviction moratoria remain a crucial tool health policymakers can use to substantially mitigate suffering. The Court’s assessment of the costs landlords incur is also mistaken. The CDC’s moratorium, for one, directs tenants to still make “as close to the full rental payment,” per Justice Breyer.[23] And secondly, he adds, Congress has appropriated billions of dollars in rental assistance payments,[24] which surely reduces landlords’ financial injury. Considering these factors altogether, the Court’s appraisal of the “balance of equities” overestimated the injuries to landlords while grossly underestimating the government’s interest. Clearly, the government’s broad interest in preserving public health compels the eviction moratorium to stand.

That final point is crucial to understanding why the Court erred on its assessment of the public’s interest in the continued moratorium. The COVID-19 pandemic is, notably, a matter of public health and public safety, and the eviction of thousands of renters who cannot pay through no fault of their own, poses a threat far beyond their own lives. Viral transmission, as well as increased homelessness, impose significant health and social costs. At the very least, the CDC — acting pursuant to its intentionally broad statutory authority — should be able to address these public health concerns, without the Court standing in its way. Yet the Court did. 

The unfortunate reality is that the ruling will stand, and neither Congress nor the executive branch appear to be poised to act. Congressional Democrats may very well be able to clear up any ostensible ambiguity in the law, but the composition of the Senate as well as present exigencies make consideration of eviction laws highly unlikely. 

These concerns are valid for millions of renters across the nation, yes, but the Court’s ruling should also cause even the most well-to-do landlords to shudder. Alabama Realtors exhibits a Court growing increasingly, and irrationally, less deferential to bureaucratic institutions like the CDC. For whatever reason, the Court appeared less concerned with reasonable legal analysis and more intent on wresting whatever discretion it could from the CDC’s grasp — in spite of the present exigencies, comments from the statute’s drafters, or plain common sense. If there was ever an appropriate time for the Court to show at least marginal deference to a public health federal agency, it should be during one of the worst global health crises in centuries. Yet the per curiam rebuffed the CDC’s reasonable claim to its broad statutory authority. And if these Justices were irrationally ruthless now, one can only imagine what they will do in more normal times.

This unyielding quality flows from the Court’s unreasonable affinity for textualism. Namely, it “expect[s] Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”[25] This is a, frankly, irrationally high bar for all federal agencies to meet. With hugely influential policymaking tools at its disposal, such agencies’ work inheres in making policy changes of “vast economic and political significance.”  And to ask that Congress “speak clearly” not only plainly ignores its time and partisan constraints but also the serviceability of vagueness and breadth in the laws it promulgates. It would certainly be absurd to Congress to promulgate legislation that speaks clearly on each detail, if the legislators’ intent is to confer better-informed bureaucrats with the broad power to respond to national crises as they see fit. Yet this is the Court’s expectation. This, of course, is unsurprising, given Court’s conservative bent, but the intensity of the new Court’s conservatism could make challenges like that of Alabama Realtors a more frequent reality. 

Equally as concerning is the Court’s shadow docket — the informal, unstandardized term during which Alabama Realtors was decided. That the Court was able to make such an erroneous, yet significant decision, all while not even hearing one oral argument, is a clear threat to its sociological legitimacy. As Justice Breyer suggests in his dissent,[26] whatever the outcome, the significance Alabama Realtors called for — at the very least — formal oral argument and deliberation. Alabama Realtors, obviously, received no such treatment. Insofar as the Court deprived the parties of due briefing and argument, such a legally illegitimate action has important sociological consequences. Such an unstandardized, hasty process quite concerningly draws into question whether the Supreme Court’s rules apply equally to all. More pointedly, how can we accept a Court’s rulings that make sweeping judgements without due diligence? 

In my view, we cannot — and it seems Americans largely agree. Unsurprisingly, the Supreme Court’s approval rating fell to a record low following a number of high-profile shadow docket cases, not the least of which was Alabama Realtors.[27] In a world where sociological acceptance confers power upon institutions, these poor poll numbers matter. Even the staunchest originalists, who so forcefully inveigh against any influence of public opinion in the Court’s legal rulings, ought to heed this sociological reality. Indeed, these Justices may have lofty plans for this new Court, but without the legitimacy that flows from sociological acceptance, their rulings will be more uncompromising and petulant than transformative or binding. 

References

[1] Lieber, Ron. “The New Eviction Moratorium: What You Need to Know.” The New York Times, September 2, 2020, sec. Your Money. https://www.nytimes.com/2020/09/02/your-money/eviction-moratorium-covid.html.

[2] The White House. “FACT SHEET: Biden-Harris Administration Announces Initiatives to Promote Housing Stability By Supporting Vulnerable Tenants and Preventing Foreclosures,” June 24, 2021. https://www.whitehouse.gov/briefing-room/statements-releases/2021/06/24/fact-sheet-biden-harris-administration-announces-initiatives-to-promote-housing-stability-by-supporting-vulnerable-tenants-and-preventing-foreclosures/.  

[3] Alabama Association of Realtors, et al., v. Department of Health and Human Services, et al., 594 U. S. ___ (2021)

[4] Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116–136, § 4024, 492 (2020).

[5] “Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID–19; Agency Order,” 85 Federal Register 173 (4 September 2020), 55292-55297

[6] “Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID–19; Agency Order,” 86 Federal Register 21 (3 February 2021), 8020-8025

[7] “Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID–19; Agency Order,” 86 Federal Register 60 (31 March 2021), 16731-16738

[8] “Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID–19; Agency Order,” 86 Federal Register 173 (28 June 2021), 34010-34018

[9] Shepardson, David, and Trevor Hunnicutt. “U.S. CDC Announces New 60-Day COVID-19 Eviction Moratorium.” Reuters, August 4, 2021. https://www.reuters.com/world/us/biden-announce-new-eviction-moratorium-new-york-times-2021-08-03/.

[10] Ibid.

[11] Nken v. Holder, Attorney General, 556 U. S. ___ (2009)

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Public Health Service Act, Pub. L. No. 410, § 361(a) (1944).

[16] Ibid.

[17] Ibid.

[18] Alabama Association of Realtors, et al., v. Department of Health and Human Services, et al., 594 U. S. ___ (2021) (Breyer, J., dissenting)

[19] Ibid.

[20] Fridman, Ariel, Rachel Gershon, and Ayelet Gneezy. “COVID-19 and Vaccine Hesitancy: A Longitudinal Study.” PLOS ONE 16, no. 4 (April 16, 2021): e0250123. https://doi.org/10.1371/journal.pone.0250123.

[21] Dellatto, Marisa. “U.S. Covid-19 Deaths For 2021 Surpass Toll From 2020.” Forbes. Accessed October 28, 2021. https://www.forbes.com/sites/marisadellatto/2021/10/06/us-covid-19-deaths-for-2021-surpass-toll-from-2020/.

[22] Leifheit, Kathryn M, Sabriya L Linton, Julia Raifman, Gabriel L Schwartz, Emily A Benfer, Frederick J Zimmerman, and Craig Evan Pollack. “Expiring Eviction Moratoriums and COVID-19 Incidence and Mortality.” American Journal of Epidemiology, no. kwab196 (July 26, 2021). https://doi.org/10.1093/aje/kwab196.

[23] “Temporary Halt in Residential Evictions in Communities With Substantial or High Transmission of COVID-19 To Prevent the Further Spread of COVID-19; Agency Order,” 86 Federal Register 149 (6 August 2021), 43244-43252

[24] Ibid.

[25] Ibid.

[26] Ibid.

[27] Jones, Jeffrey M. “Approval of U.S. Supreme Court Down to 40%, a New Low.” Gallup.com, September 23, 2021. https://news.gallup.com/poll/354908/approval-supreme-court-down-new-low.aspx.