Update: On June 29, 2021, in Alabama Association of Realtors v. Department of Health and Human Services ( (U.S. June 29,2021)), the Supreme Court rejected the emergency petition to vacate the stay. As a result, the moratorium, as extended, remains in effect.

Update: As of June 3, 2021, there is a pending appeal before the United States Supreme Court (Supreme Court) requesting a block of the CDC's nationwide eviction moratorium in advance of the June 30, 2021 expiration date.

On May 5, 2021, in Alabama Association of Realtors v. United States Department of Health and Human Services, (U.S.D.C., D.C. Nov. 20, 2020) a federal district court judge for the District of Columbia ruled that the CDC lacks authority to impose a nationwide eviction moratorium. The court's decision was issued in connection with a lawsuit challenging the constitutionality of the CDC's order extending the moratorium to June 30, 2021.

On March 13, 2020, the Trump Administration declared COVID-19 a national emergency. Two weeks later the Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, 134 Stat. 281 (2020) (CARES Act) was signed into law. The CARES Act included a 120-day eviction moratorium for rental properties that participated in federal assistance programs or were subject to federally-backed loans. On September 20, 2020, in response to President Trump's order that the Secretary of the Department of Health and Human Services (HHS) and the Director of the CDC consider whether temporarily halting residential evictions would mitigate the spread of the COVID-19 virus, HHS directed the CDC to issue an order temporarily halting residential evictions pursuant to §361 of the Public Health Service Act, 42 U.S.C. § 264(a) and 42 C.F.R. § 70.2 (CDC Order). Several states followed suit and enacted their own temporary eviction moratoriums.

While the CARES Act eviction moratorium applied only to rental properties backed by the federal government, the CDC Order applied to all residential properties nationwide and included significant criminal penalties.

Congress subsequently extended the CDC Order through January 31, 2021. The CDC then extended the order twice more, the first of which extended the order through March 31, 2021. The second extension is set to expire on June 30, 2021.

On November 20, 2020, the Alabama Association of Realtors (Plaintiffs), a coalition of real estate management companies and trade organizations, filed suit seeking declaratory and injunctive relief, challenging the lawfulness of the CDC's eviction moratorium on several statutory and constitutional grounds. The Plaintiff's allegations included a claim that to the extent that the Public Health Service Act authorizes the eviction moratorium, it is an unconstitutional delegation of Congress's legislative authority under Article 1 of the United States Constitution.

The court agreed with the Plaintiffs, holding that the CDC Order exceeds the statutory authority granted pursuant to Section 264(a) of the Public Health Service Act.

The court determined that the first clause of Section 264(a) provides the CDC, with the approval of HHS, the authority to enforce such regulations as are necessary to combat the international or interstate spread of communicable disease. However, in narrowly construing the language of the statute's second clause, the court pointed out that the measures enumerated in the statute for enforcing any such regulations are limited to the "inspection, fumigation, disinfection, sanitation, pest extermination [and] destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings." The court observed that the CDC's nationwide eviction moratorium satisfied none of those statutory limitations and vacated the CDC Order.

The Department of Justice (DOJ), on behalf of the CDC, promptly appealed the court's decision to the U.S. Court of Appeals and requested an emergency stay on the order pending a decision from the Court of Appeals. On May 14, 2021, the court stayed the ruling, pending appeal, and the moratorium currently remains in place.

On June 2, 2021, the Court of Appeals declined to lift the stay, leaving the moratorium in effect. The Court of Appeals found that the CDC was likely to succeed on the merits, showing the Court of Appeals did not abuse its discretion to grant the stay. The day following the Court of Appeal's ruling, the Plaintiffs petitioned the Supreme Court through an emergency application to vacate the stay before the CDC Order's expiration. With the CDC Order set to expire on June 30, 2021, the emergency application could become moot before there is a ruling.

The CDC Order continues to face various challenges in courts across the nation. Two examples can be found in:

The Alabama Association of Realtors case is only the most recent of a number cases challenging the statutory and constitutional authority of the CDC to impose or extend the nationwide eviction moratorium. While some judges have limited the scope of their decisions to apply only to the parties to the lawsuits, in this case the judge refused to do so, indicating its reach would be nationwide.

While the CDC Order imposing a nationwide eviction moratorium is set to expire on June 30, 2021, there is ongoing speculation that the expiration date will be extended. In that event, landlords and tenants should pay close attention to whether the Supreme Court decides to hear the emergency petition. Even if the CDC Order expires, state and local eviction moratoriums continue to stay in place across the nation. For a regularly updated collection of state and local eviction moratoriums, see Covid 19: Commercial and Residential Eviction Moratoriums Select State and Local Laws Tracker (US).