In what may or may not be a harbinger for court action on the national eviction moratorium that Joe Biden and the CDC modified and extended for 60 days on August 3, the U.S. Supreme Court answered an “emergency” plea from landlords and struck down a portion of New York’s own eviction moratorium that gave tenants a presumption of economic distress, as Amy Howe of SCOTUSblog explains:
In a brief unsigned order on Thursday, the Supreme Court granted the landlords’ request to block New York from enforcing the portion of the COVID Emergency Eviction and Foreclosure Prevention Act that generally allows tenants to ward off eviction, without a hearing, simply by certifying that they have suffered financial hardship as a result of the pandemic. Such a scheme, the court explained, “violates the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case.’” However, the court continued, tenants can still raise financial problems resulting from the pandemic as a defense in court.
The conservative majority of the Court presumably concurred in this judgment, while the three liberals (Justices Stephen Breyer, who penned a dissent, and Justices Sonia Sotomayor and Elena Kagan, who joined it) disagreed, citing the expiration of the New York moratorium on August 31, the aid being rushed to landlords via a federal-state rental-assistance initiative, and the “grave and unpredictable public health crisis” that may actually be intensifying.
Aside from its impact in New York, where some landlords may go ahead with eviction proceedings and some tenants may be unable to establish financial distress, the order will be examined for signs of where the Court might go if and when the national moratorium comes before it (a federal district court judge in Washington heard oral arguments on a landlords’ petition to strike down the CDC action earlier this week, but today left it in place, despite her misgivings, because of an earlier Court of Appeals ruling). Certainly the Supreme Court dissenters’ arguments echo those of the president in deciding to risk repudiation by the federal courts after the Supreme Court only allowed a brief extension of the moratorium in July. But the precise issue on which landlords prevailed in the New York case is not necessarily relevant — or fatal — to the national moratorium.
Meanwhile, it’s hard to predict exactly how many tenants in New York will be adversely affected by the Supreme Court order, particularly so long as the national moratorium stands, as Adam Liptak notes:
It was not clear how many people could immediately be affected by the ruling on Thursday. More than 830,000 households in New York State, the majority of them in New York City, are behind on rent, with a total estimated debt of more than $3.2 billion, according to an analysis of census data by the National Equity Atlas, a research group associated with the University of Southern California.
What remains is a sort of race between evictions, legal protections against them, rental assistance, and fallout from the Delta variant. A wild card is the rapidly rising cost of rental housing, which is a burden for tenants and a big incentive for eviction-minded landlords. It’s a very consequential competition.