for the joint statement.
Additional analysis of the Court’s opinion and the rental assistance distribution is below. Contact David McCarthy
Procedural Background: There and Back Again
The case of Alabama Association of Realtors v. Dept. of Health and Human Services
highlights the unusual nature of the Court’s action. As we covered previously, a federal District Court ruled early this year that the CDC eviction moratorium exceeded the department’s statutory authority. But the District Court issued a “stay” or a pause on its opinion pending appeals. The stay essentially allowed the moratorium to remain in place during the appeal process. The plaintiffs originally appealed the stay to the DC Circuit Court of Appeals, which upheld the stay, and then the case went to the Supreme Court, which originally upheld it in late July.
However, Justice Kavanaugh, who joined the July 5-4 majority, filed a concurring opinion upholding the moratorium but agreeing the CDC exceeded its authority and that “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.” Since four other justices voted to vacate the stay (end the moratorium) in July it was widely expected the moratorium would not survive another trip to the Supreme Court. That bet was accurate.
After the CDC reissued the moratorium, the plaintiffs revived their motions to remove the stay. While the District Court agreed with the plaintiffs, it was bound by the original Court of Appeals ruling keeping the stay in place. The case found its way again to SCOTUS where Justice Kavanaugh and Chief Justice Roberts joined the other Republican-appointed justices in vacating the stay and allowing the moratorium to expire.
The case is unusual largely because of the several page opinion that accompanied the order. While emergency appeals with respect to stays are a normal part of Supreme Court practice, the justices often rule on these motions without much explanation. By issuing an opinion, the Court sets a strong precedent for lower courts that might have considered the issue, or if the federal government were to try to revive a moratorium without Congressional authorization.
In this case, the majority justified the extra attention due to the thorough nature of consideration the case has received and the fact that the plaintiffs are very likely to succeed in overturning the moratorium: