SCOTUS Strikes Down CDC Eviction Moratorium And Leaves Tantalizing Clues About Takings

by Robert Thomas, Inverse Condemnation, August 26, 2021

The other shoe -- perhaps the most predictable shoe drop in legal history -- dropped yesterday, and the Supreme Court vacated the stay on appeal in one of the cases challenging the CDC's renewed eviction moratorium, meaning that the district court's judgment vacating the moratorium can go into effect. Alabama Ass'n of Realtors v. Dep't of Health and Human Svcs, No. 21A23 (Aug. 26, 2021) (per curiam).

The six-Justice majority, in an unsigned opinion, held that ""[i]t strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts." Slip op. at 1-2. Now remember, this is one of the cases challenging the CDC moratorium on non-takings grounds, primarily asserting that the CDC's authorizing statute does not authorize this sweeping an action (or if it does, the statute is unconstitutional). For a complete analysis of the opinion, see lawprof Ilya Somin's hot take: "Supreme Court Rules Against the Revised CDC Eviction Moratorium."

But takings mavens, take heart. The unidentified author of the per curiam opinion left us some tantalizing takings breadcrumbs even though this case does not contain a takings claim.

First, a citation to Loretto, noted above. As we noted, this isn't a takings case. Yet, the court seemingly went out of its way to point out that the inability to evict nonpaying tenants "intrudes" on the "fundamental" right to exclude. You know what is missing from this cite? That's right, Cedar Point Nursery. Interesting that the opinion goes back to Loretto when it decided (by the same six Justices) Cedar Point just a short while ago. In other words, don't count Loretto out entirely just yet. And what other case is missing from the opinion? That's right, any mention of Yee v. City of Escondido. You might think that a rent-control decision in which the right to exclude might also be referenced. But no. So what this tells us is that those takings claims against the various eviction moratoria (see here, here, and here, for example), just got a boost, because as we know. being able to allege a categorical taking is like the end of the yellow brick road for takings plaintiffs. 

Second, the Court cited the Steel Seizure Case for the idea that just because we're in an emergency doesn't mean that the rules don't apply.

It is indisputable that the public has a strong interest in combating the spread of the COVID–19 Delta variant. But our system does not permit agencies to act unlawfully even in pursuit of desirable ends. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 582, 585–586 (1952) (concluding that even the Government’s belief that its action “was necessary to avert a national catastrophe” could not overcome a lack of congressional authorization). -- Slip op. at 8.

his is a good reminder that the "character of the government action" being an emergency response (even if a reviewing court somehow finds a way to get around the categorical nature of the physical invasion and apply Penn Central) isn't some kind of get out-of-the-Fifth-Amendment-free card, as many courts have unfortunately held (as noted in our recent article on COVID takings). 

Maybe the Takings Clause is the deus ex machina after all...

(PS - we're thinking Chief Justice Roberts might have authored this one. Just a feeling.)

PDF: Alabama Ass'n of Realtors v. Dep't of Health and Human Svcs, No. 21A23 (U.S. Aug. 26, 2021) (per curiam)