On June 29, 2021, the Supreme Court of the United States denied an application to vacate a stay entered by the United States District Court for the District of Columbia (“District Court”), effectively refusing to lift the Centers for Disease Control and Prevention (“CDC”)’s eviction moratorium and hear challenges to its constitutionality.
Background & History
The District Court originally ruled in favor of the Alabama Association of Realtors and other real estate market participants (the “Applicants”) that challenged the eviction moratorium. The District Court did this by vacating the moratorium as having exceeded the CDC’s authority under § 264(a) of the Public Health Service Act1 —a statute authorizing the Surgeon General, with the approval of the Secretary, to make and enforce regulations deemed “necessary to prevent the introduction, transmission, or spread of communicable diseases . . . .”2
The Department of Health and Human Services (the “Department”) appealed to the United States Court of Appeals for the District of Columbia Circuit (the “Court of Appeals”). The Department also filed an Emergency Motion for Stay Pending Appeal with the District Court, hoping to pause the order vacating the moratorium.
The District Court, despite finding that the Department had not shown a likelihood of success on its motion, because other courts across the country have also invalidated the eviction moratorium, held that the Department raised a “serious question on the merits.” The District Court, therefore, entered a stay of its own order. The court noted that two courts in other jurisdictions had recently ruled that the eviction moratorium was proper.
The Applicants appealed the stay to the Court of Appeals to no avail.3 They then filed their Emergency Application for a Vacatur of the Stay Pending Appeal Issued by the United States District Court for the District of Columbia with the Supreme Court on June 03, 2021.
The Decision to Decline Vacatur
The Supreme Court, in a 5-4 decision, denied the application to vacate the stay, thereby effectively upholding the CDC’s eviction moratorium. Neither the majority nor the minority filed opinions shedding light on their reasoning, but Justice Kavanaugh, who voted in the majority, filed a concurring opinion explaining his reasons for denying the request to vacate the stay.
Justice Kavanaugh wrote that he “agree[s] with the District Court and the applicants that the [CDC] exceeded its statutory authority by issuing a nationwide eviction moratorium.” Nevertheless, he concluded that:
[B]ecause those few weeks [(until the expiration of the moratorium)] 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.
Justice Kavanaugh further made clear that “[i]n my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”
Though the Supreme Court refused to disturb the CDC’s eviction moratorium on an emergency application to vacate a stay, it is not yet known what remains for other cases making their way up through the courts.
For instance, in an article on March 16, 2021, we discussed the Department of Health and Human Services’ decision to appeal the United States District Court for the Eastern District of Texas’s decision declaring the eviction moratorium unconstitutional. We also considered how that decision might ultimately become part of a larger split among courts in light of two contrary decisions (the ones that the District Court for the District of Columbia found relevant in staying its order)— Brown v. Azar and Chambless Enters., LLC v. Redfield.
The case we previously reported on in that earlier article, Terkel v. Centers for Disease Control and Prevention, remains pending in the Fifth Circuit Court of Appeals. In the meantime, as that appeal moves towards a resolution, it will be interesting to see whether the CDC sees fit to attempt to extend the new eviction moratorium date beyond July 31st, notwithstanding Justice Kavanaugh’s unmistakable signal that he would not be inclined to affirm a further extension.
 See Alabama Ass’n of Realtors v. U.S. Dep’t of Health & Human Servs., No. 20-cv-3377 (D.D.C. May 14, 2021) (ECF No. 54).
 42 U.S.C. § 264(a)
 See Alabama Ass’n of Realtors v. U.S. Dep’t of Health & Human Servs., No. 21-5093 (D.C. Cir. June 2, 2021).
 Denial of Emergency Application for Vacatur (No. 20A169).