Judicial Opinion

I got a chance to participate in a Moot Court as a judge, here is my judicial opinion on the case. I like posting these just as a writing sample and to see how my writing and understanding grow over time.

ALABAMA ASSOCIATION OF REALTORS, ET AL. v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL.

JUSTICE GRACE OJOFEITIMI delivered the opinion of the court.

I

A

In March 2020, the passage of the Coronavirus Aid Relief and Economic Security Act helped alleviate burdens caused by the ongoing COVID-19 pandemic. See 86 Fed. Reg. 43244 (2021). This Act imposed a 120-day moratorium for properties that participated in federal assistance programs. The moratorium expired in July and was not renewed by Congress. The Center of Disease Control then pursued further action in imposing a nationwide moratorium on evictions of any tenants living in areas with high COVID-transmission rates and those in demonstrable financial need. See 85 Fed. Reg. 55292 (2020). The CDC’s moratorium was originally meant to expire on December 31, 2020 however Congress extended it for one month as part of the second COVID-19 relief act. See Consolidated Appropriations Act, 2021, Pub. L. 116– 260, §502, 134 Stat. 2078–2079. As the deadline narrowed in, the CDC again took matters into its own hands and extended the moratorium through July. All the CDC’s actions are reliant on §361(a) of the Public Health Service Act.

“The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.”

This Act was passed in 1944 and has never been used to justify an eviction moratorium. The regulations used under the authority of the Act were pertaining to quarantining individuals and prohibiting the sale of animals. se. See, e.g., 40 Fed. Reg. 22543 (1975). These were used in specificity to the transmission of disease and not through the movement of all people. The Alabama Association of Realtors have received a judgement from the U.S. District Court for the District of Columbia stating the moratorium is unlawful and vacating the moratorium. However, The District Court has issued a stay while the government pursues an appeal. This court has vacated this stay and upholds the lower court's decision to vacate the moratorium.

In response, rental associations and rental property managers in Alabama and Georgia sued against the CDC’s moratorium seeking an injunction from the court. The U.S. District Court for the District of Columbia granted the plaintiffs summary judgment, finding that the CDC lacked statutory authority to impose the moratorium. Alabama Assn. of Realtors v. Department of Health and Human Servs., 2021 WL 1779282, *10 (May 5, 2021). However, the court stayed its order pending appeal. The reasoning behind this being that the government has not shown the likelihood of success on merits. This is one of the fundamental factors the court has decided is warranted in granting a stay. See Nken v. Holder, 556 U. S. 418, 434 (2009).

II

A

This Court rules in favor of the applicant and vacates the stay that renders the decision of the lower court enforceable.

B

This court reasons that the Government does not meet the standard imposed by Nken v. Holder required to issue a stay. The Government has failed to meet the standard of a strong showing of success on the merits. Nken v. Holder finds that in order to issue a stay the applicant must meet 4 factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies”.

The CDC lacks the proper authority to make such legally binding legislation with congressional approval. The CDC imposed a nationwide moratorium on the authority of a decades-old statute. See §361(a) 86 Fed. Reg. 43248–43249. The Government asserts that the first sentence of §361(a) gives them the authority to take such broad measures to control the spread of COVID-19. However, the second sentence imposes limits on said power specifically to inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles. This gives the CDC authority to regulate interstate infection directly while the moratorium was far indirect. The CDC claims that if evictions occur, tenants will move across state lines which can spread COVID-19. While this may be true this is such a slippery slope that is such an overreach power because it does not directly target the disease. Reading both sentences in completion it is clear that Congress has given the CDC power to regulate interstate infections but has imposed limits and has given them a clear scope of power.

Even if the §361(a) was more ambiguous the CDC’s moratorium still is so far out of its authority without consent and counsel from congress. The moratorium originally affected housing units under federal assistance with congressional approval. Then the CDC unilaterally expanded the reach of the moratorium nationwide and continued to sustain it several times. At least 80% of the nation was affected by the moratorium and Congress has spent almost $50 billion in rental assistance. See 86 Fed. Reg. 43247. This Government's reading of §361(a) when applied in this case would give the CDC an exorbitant amount of authority. The main issue here is that Congress has already given the CDC authority to do what it deems “necessary.” To interpret this section with such expansive authority would be unprecedented and would consequently, turn the CDC into a governing legislative and executive body. If Congress had intentions of extending the moratorium, it would have done so prior to its expiration date. In Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 582, 585–586 (1952) concluded that the Government’s belief that its action is necessary to avert a national catastrophe cannot overcome a lack of congressional authorization. It is up to Congress, not the CDC to determine whether there is public interest in the extension of a moratorium.

C

While there is a substantial amount of public interest in reducing the spread of COVID-19, the government has failed to meet the other factors required to receive a stay. Based off the merits of the case, the Government will not prove to be successful, in addition as time prolongs the injury will be at the harm of the applicant and not the public. It alters the landlord-tenant relationship and forces landlords to bear all financial burdens. United States Forest Service v. Cowpasture River Preservation Assn., 590 U. S. ___, ___–___ (2020) (slip op., at 15–16). If the moratorium on evictions is to continue, Congress must authorize it. The application to vacate the stay referred to the court is granted.

So ordered.