Citing a surge of COVID-19 cases in July 2021, the Centers for Disease Control and Prevention (CDC) issued a new federal eviction moratorium on August 3, 2021 (Order). The Order is similar to the CDC’s previous eviction moratorium, which expired on July 31, 2021, with one major exception—the Order applies only to U.S. counties that are experiencing “substantial or high” levels of COVID-19 transmission, as defined by the CDC. Based on this standard, the Order currently applies to more than 80% of all U.S. counties.
The constitutionality of the Order is unclear. Opponents of the Order would point to the Supreme Court’s decision in Alabama Ass’n of Realtors v. Department of Health & Human Services, 594 U.S. ____ (2021), issued on June 29, 2021. In a 5-4 decision, the Supreme Court agreed that the CDC exceeded its statutory authority when it issued its previous eviction moratorium. But for practical and policy purposes, the constitutionality of the Order will not likely matter because the Order is set to expire on October 3, 2021. The short duration of the Order will not deter legal challenges, but any lawsuits filed will likely take more than two months to litigate. Assuming that the Order is not extended beyond October 3, any challenge would be academic for purposes of staying the moratorium.