Alabama Assn. of Realtors v. Department of Health and Human Servs.

Summary

The District Court’s judgment—which vacated as unlawful the Centers for Disease Control and Prevention’s imposition of a nationwide moratorium on evictions of any tenants who live in a county that is experiencing substantial or high levels of COVID–19 transmission and who make certain declarations of financial need, 86 Fed. Reg. 43244—is enforceable and the stay of that judgment is vacated.

Text

PRELIMINARY PRINT 
Volume 594 U. S. Part 2 
Pages 758–773 
OFFICIAL REPORTS 
OF 
THE SUPREME COURT 
August 26, 2021 
REBECCA A. WOMELDORF 
reporter of decisions 
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the bound volume is published. Users are requested to notify the Reporter 
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758 OCTOBER TERM, 2020 
Syllabus 
ALABAMA ASSOCIATION OF REALTORS et al. v. 
DEPARTMENT OF HEALTH AND HUMAN SERVICES 
et al. 
on application to vacate stay 
No. 21A23. Decided August 26, 2021 
Invoking § 361(a) of the Public Health Service Act, the Director of the 
Centers for Disease Control and Prevention (CDC) imposed a nation-
wide moratorium on evictions of certain tenants in counties experienc-
ing substantial or high levels of COVID-19 transmission. Realtor asso-
ciations and rental property managers in Alabama and Georgia sued to 
enjoin the CDC's moratorium. On May 5, 2021, the U. S. District Court 
for the District of Columbia granted the plaintiffs summary judgment, 
holding that the CDC lacked statutory authority to impose the morato-
rium. The District Court stayed its order pending appeal, and the D. C. 
Circuit upheld the stay on June 2, 2021. On June 29, 2021, this Court 
declined to vacate the stay. 594 U. S. –––. The moratorium expired on 
July 31, 2021. The CDC subsequently reimposed a new moratorium 
that, although slightly narrowed in geographic scope, was indistinguish-
able from the old moratorium. The plaintiffs returned to the District 
Court to seek vacatur of its stay. The District Court agreed that the 
stay was no longer warranted, but concluded that the D. C. Circuit's 
earlier decision not to vacate the stay constituted the law of the case. 
On appeal, the D. C. Circuit again declined to lift the stay, and plaintiffs 
again applied to this Court seeking to vacate the District Court's stay. 
Held: The Court agrees with the District Court that its stay is no longer 
justifed under the governing test. See Nken v. Holder, 556 U. S. 418, 
434. 
(a) The applicants have a substantial likelihood of success on the mer-
its. The Government contends that the frst sentence of § 361(a) gives 
the CDC broad authority to take whatever measures it deems necessary 
to control the spread of COVID–19, including issuing the moratorium. 
But the second sentence informs the grant of authority by illustrating 
the kinds of measures that could be necessary. Reading both sentences 
together, rather than the frst in isolation, it is a stretch to maintain that 
§ 361(a) gives the CDC the authority to impose this eviction moratorium. 
Even if the text were ambiguous, the sheer scope of the CDC's claimed 
authority would counsel against the Government's interpretation. The 
Court expects Congress to speak clearly when authorizing an agency to 
exercise powers of vast economic and political signifcance. And the

Cite as: 594 U. S. 758 (2021) 759 
Per Curiam 
moratorium intrudes into an area that is the particular domain of state 
law: the landlord-tenant relationship. Since § 361(a)'s enactment in 
1944, no regulation premised on it has even begun to approach the size 
or scope of the eviction moratorium or its imposition of criminal penal-
ties on violators. Section 361(a) is a wafer-thin reed on which to rest 
such sweeping power. 
(b) The equities do not justify depriving the applicants of the District 
Court's judgment in their favor. Applicants, along with millions of 
landlords, face irreparable harm from the deprivation of rent payments 
with no guarantee of eventual recovery. Since the District Court en-
tered its stay, whatever interest the Government had in maintaining the 
moratorium's original end date to ensure the orderly administration of 
those programs has diminished. And Congress—on notice that a fur-
ther extension would almost surely require new legislation—failed to 
act in the several weeks leading up to the moratorium's expiration. It 
is up to Congress, not the CDC, to decide whether the public interest 
merits further action here. 
Application to vacate stay granted. 
Per Curiam. 
The Director of the Centers for Disease Control and Pre-
vention (CDC) has imposed a nationwide moratorium on 
evictions of any tenants who live in a county that is experi-
encing substantial or high levels of COVID–19 transmission 
and who make certain declarations of fnancial need. 86 
Fed. Reg. 43244 (2021). The Alabama Association of Real-
tors (along with other plaintiffs) obtained a judgment from 
the U. S. District Court for the District of Columbia vacating 
the moratorium on the ground that it is unlawful. But the 
District Court stayed its judgment while the Government 
pursued an appeal. We vacate that stay, rendering the 
judgment enforceable. The District Court produced a com-
prehensive opinion concluding that the statute on which the 
CDC relies does not grant it the authority it claims. The 
case has been thoroughly briefed before us—twice. And 
careful review of that record makes clear that the applicants 
are virtually certain to succeed on the merits of their argu-
ment that the CDC has exceeded its authority. It would be 
one thing if Congress had specifcally authorized the action 
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760 ALAB AMA ASSN. OF REALTORS v. DEPARTMENT 
OF HEALTH AND HUMAN SERVS. 
Per Curiam 
that the CDC has taken. But that has not happened. In-
stead, the CDC has imposed a nationwide moratorium on 
evictions in reliance on a decades-old statute that authorizes 
it to implement measures like fumigation and pest extermi-
nation. It strains credulity to believe that this statute 
grants the CDC the sweeping authority that it asserts. 
I 
A 
In March 2020, Congress passed the Coronavirus Aid, 
Relief, and Economic Security Act to alleviate burdens 
caused by the burgeoning COVID–19 pandemic. Pub. L. 
116–136, 134 Stat. 281. Among other relief programs, the 
Act imposed a 120-day eviction moratorium for properties 
that participated in federal assistance programs or were sub-
ject to federally backed loans. § 4024, id., at 492–494. 
When the eviction moratorium expired in July, Congress 
did not renew it. Concluding that further action was 
needed, the CDC decided to do what Congress had not. See 
85 Fed. Reg. 55292 (2020). The new, administratively im-
posed moratorium went further than its statutory predeces-
sor, covering all residential properties nationwide and im-
posing criminal penalties on violators. See id., at 55293, 
55296. 
The CDC's moratorium was originally slated to expire on 
December 31, 2020. Id., at 55297. But 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 new deadline approached, 
the CDC again took matters into its own hands, extending 
its moratorium through March, then again through June, and 
ultimately through July. 86 Fed. Reg. 8020, 16731, 34010. 
The CDC relied on § 361(a) of the Public Health Service 
Act for authority to promulgate and extend the eviction mor-
atorium. See 58 Stat. 703, as amended, 42 U. S. C. § 264(a). 
That provision states: 
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Per Curiam 
“The Surgeon General, with the approval of the [Secre-
tary 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 coun-
tries 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.” 
See also 42 CFR § 70.2 (2020) (delegating this authority to 
the CDC). Originally passed in 1944, this provision has 
rarely been invoked—and never before to justify an eviction 
moratorium. Regulations under this authority have gener-
ally been limited to quarantining infected individuals and 
prohibiting the import or sale of animals known to transmit 
disease. See, e. g., 40 Fed. Reg. 22543 (1975) (banning small 
turtles known to be carriers of salmonella). 
B 
Realtor associations and rental property managers in Ala-
bama and Georgia sued to enjoin the CDC's moratorium. 
The U. S. District Court for the District of Columbia granted 
the plaintiffs summary judgment, holding that the CDC 
lacked statutory authority to impose the moratorium. Ala-
bama Assn. of Realtors v. Department of Health and 
Human Servs., 539 F. Supp. 3d 29, 43–44 (2021). 
But the court stayed its order pending appeal. It rea-
soned that even though the Government had not shown a 
substantial likelihood of success, it did make a lesser showing 
of a “serious legal question on the merits,” which the court 
said warranted granting a stay when the remaining stay fac-
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762 ALAB AMA ASSN. OF REALTORS v. DEPARTMENT 
OF HEALTH AND HUMAN SERVS. 
Per Curiam 
tors weighed in the Government's favor. Alabama Assn. of 
Realtors v. Department of Health and Human Servs., 
539 F. Supp. 3d 211, 216 (2021); see also Nken v. Holder, 
556 U. S. 418, 434 (2009) (listing the four traditional stay 
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 substanti-
ally injure the other parties interested in the proceed-
ing; and (4) where the public interest lies”). The D. C. 
Circuit agreed, though it rated the Government's argu-
ments more highly. Alabama Assn. of Realtors v. Depart-
ment of Health and Human Servs., 2021 WL 2221646 (June 
2, 2021). 
This Court declined to vacate the stay. Alabama Assn. 
of Realtors v. Department of Health and Human Servs., 591 
U. S. ––– (2021). Justice Kavanaugh concurred, explain-
ing that he agreed with the District Court that the CDC's 
moratorium exceeded its statutory authority. But because 
the CDC planned to end the moratorium in only a few weeks, 
and because that time would allow for additional and more 
orderly distribution of congressionally appropriated rental-
assistance funds, he concluded that the balance of equities 
justifed leaving the stay in place. Justice Thomas, Jus-
tice Alito, Justice Gorsuch, and Justice Barrett noted 
that they would vacate the stay. 
The moratorium expired on July 31, 2021. Three days 
later, the CDC reimposed it. See 86 Fed. Reg. 43244. 
Apart from slightly narrowing the geographic scope, the new 
moratorium is indistinguishable from the old. 
With the moratorium once again in place, the plaintiffs re-
turned to the District Court to seek vacatur of its stay. The 
District Court agreed with the plaintiffs that the stay was 
no longer warranted for two reasons. First, the Govern-
ment was unlikely to succeed on the merits, given the four 
votes to vacate the stay in this Court and Justice Kava-

Cite as: 594 U. S. 758 (2021) 763 
Per Curiam 
naugh's concurring opinion. 557 F. Supp. 3d 1, 10 (2021). 
Second, the equities had shifted in the plaintiffs' favor: Vac-
cine and rental-assistance distribution had improved since 
the stay was entered, while the harm to landlords had contin-
ued to increase. Id., at 9–10, n. 3. But the court concluded 
that its hands were tied by the law of the case, in light of 
the D. C. Circuit's earlier decision not to vacate the stay. 
Ibid. That denial was followed by one more stop at the 
D. C. Circuit, where that court again declined to lift the stay. 
2021 WL 3721431 (Aug. 20, 2021). 
Having passed through the lower courts twice, the plain-
tiffs return as applicants to this Court to again ask us to 
vacate the District Court's stay. 
II 
The District Court concluded that its stay is no longer jus-
tifed under the governing four-factor test. See Nken, 556 
U. S., at 434. We agree. 
A 
The applicants not only have a substantial likelihood of 
success on the merits—it is diffcult to imagine them losing. 
The Government contends that the frst sentence of § 361(a) 
gives the CDC broad authority to take whatever measures 
it deems necessary to control the spread of COVID–19, in-
cluding issuing the moratorium. But the second sentence 
informs the grant of authority by illustrating the kinds of 
measures that could be necessary: inspection, fumigation, 
disinfection, sanitation, pest extermination, and destruction 
of contaminated animals and articles. These measures di-
rectly relate to preventing the interstate spread of disease 
by identifying, isolating, and destroying the disease itself. 
The CDC's moratorium, on the other hand, relates to inter-
state infection far more indirectly: If evictions occur, some 
subset of tenants might move from one State to another, and 
some subset of that group might do so while infected with 
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764 ALAB AMA ASSN. OF REALTORS v. DEPARTMENT 
OF HEALTH AND HUMAN SERVS. 
Per Curiam 
COVID–19. See 86 Fed. Reg. 43248–43249. This down-
stream connection between eviction and the interstate 
spread of disease is markedly different from the direct tar-
geting of disease that characterizes the measures identifed 
in the statute. Reading both sentences together, rather 
than the frst in isolation, it is a stretch to maintain that 
§ 361(a) gives the CDC the authority to impose this eviction 
moratorium. 
Even if the text were ambiguous, the sheer scope of the 
CDC's claimed authority under § 361(a) would counsel 
against the Government's interpretation. We expect Con-
gress to speak clearly when authorizing an agency to exer-
cise powers of “vast `economic and political signifcance.' ” 
Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 
(2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 
529 U. S. 120, 160 (2000)). That is exactly the kind of power 
that the CDC claims here. At least 80% of the country, in-
cluding between 6 and 17 million tenants at risk of eviction, 
falls within the moratorium. See Response in Opposition 
26, 29. While the parties dispute the fnancial burden on 
landlords, Congress has provided nearly $50 billion in emer-
gency rental assistance—a reasonable proxy of the moratori-
um's economic impact. See 86 Fed. Reg. 43247. And the 
issues at stake are not merely fnancial. The moratorium 
intrudes into an area that is the particular domain of state 
law: the landlord-tenant relationship. See Lindsey v. Nor-
met, 405 U. S. 56, 68–69 (1972). “Our precedents require 
Congress to enact exceedingly clear language if it wishes to 
signifcantly alter the balance between federal and state 
power and the power of the Government over private prop-
erty.” United States Forest Service v. Cowpasture River 
Preservation Assn., 590 U. S. 604, 621–622 (2020). 
Indeed, the Government's read of § 361(a) would give the 
CDC a breathtaking amount of authority. It is hard to see 
what measures this interpretation would place outside the 
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Per Curiam 
CDC's reach, and the Government has identifed no limit in 
§ 361(a) beyond the requirement that the CDC deem a meas-
ure “necessary.” 42 U. S. C. § 264(a); 42 CFR § 70.2. Could 
the CDC, for example, mandate free grocery delivery to the 
homes of the sick or vulnerable? Require manufacturers to 
provide free computers to enable people to work from home? 
Order telecommunications companies to provide free high-
speed Internet service to facilitate remote work? 
This claim of expansive authority under § 361(a) is unprec-
edented. Since that provision's enactment in 1944, no regu-
lation premised on it has even begun to approach the size or 
scope of the eviction moratorium. And it is further ampli-
fed by the CDC's decision to impose criminal penalties of up 
to a $250,000 fne and one year in jail on those who violate 
the moratorium. See 86 Fed. Reg. 43252; 42 CFR § 70.18(a). 
Section 361(a) is a wafer-thin reed on which to rest such 
sweeping power. 
B 
The equities do not justify depriving the applicants of the 
District Court's judgment in their favor. The moratorium 
has put the applicants, along with millions of landlords across 
the country, at risk of irreparable harm by depriving them 
of rent payments with no guarantee of eventual recovery. 
Despite the CDC's determination that landlords should bear 
a signifcant fnancial cost of the pandemic, many landlords 
have modest means. And preventing them from evicting 
tenants who breach their leases intrudes on one of the most 
fundamental elements of property ownership—the right to 
exclude. See Loretto v. Teleprompter Manhattan CATV 
Corp., 458 U. S. 419, 435 (1982). 
As harm to the applicants has increased, the Government's 
interests have decreased. Since the District Court entered 
its stay, the Government has had three additional months to 
distribute rental-assistance funds to help ease the transition 
away from the moratorium. Whatever interest the Govern-
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766 ALAB AMA ASSN. OF REALTORS v. DEPARTMENT 
OF HEALTH AND HUMAN SERVS. 
Breyer, J., dissenting 
ment had in maintaining the moratorium's original end date 
to ensure the orderly administration of those programs has 
since diminished. And Congress was on notice that a fur-
ther extension would almost surely require new legislation, 
yet it failed to act in the several weeks leading up to the 
moratorium's expiration. 
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 neces-
sary to avert a national catastrophe” could not overcome a 
lack of congressional authorization). It is up to Congress, 
not the CDC, to decide whether the public interest merits 
further action here. 
* * * 
If a federally imposed eviction moratorium is to continue, 
Congress must specifcally authorize it. The application to 
vacate stay presented to The Chief Justice and by him 
referred to the Court is granted. 
So ordered. 
Justice Breyer , with whom Justice Sotomayor and 
Justice Kagan join, dissenting. 
The Centers for Disease Control and Prevention (CDC) 
has issued an order that, in light of the rise of the COVID– 
19 Delta variant, temporarily prohibits certain evictions in 
high-transmission counties through October 3. Today, this 
Court, as an emergency matter, without full briefng or argu-
ment, blocks that order by vacating a lower court's stay. I 
think the Court is wrong to do so, and I dissent. 
“We may not vacate a stay entered by a [lower] court . . . 
unless that court clearly and `demonstrably' erred in its ap-
plication of `accepted standards.' ” Planned Parenthood of 
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Breyer, J., dissenting 
Greater Tex. Surgical Health Servs. v. Abbott, 571 U. S. 1061 
(2013) (Scalia, J., concurring in denial of application to vacate 
stay) (quoting Western Airlines, Inc. v. Teamsters, 480 U. S. 
1301, 1305 (1987) (O'Connor, J., in chambers)). Those ac-
cepted factors are “(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.” Nken v. Holder, 556 U. S. 
418, 426 (2009) (internal quotation marks omitted). In my 
view, the courts below did not clearly err for three reasons. 
First, it is far from “demonstrably” clear that the CDC 
lacks the power to issue its modifed moratorium order. The 
CDC's current order is substantially more tailored than its 
prior eviction moratorium, which automatically applied na-
tionwide. Justifed by the Delta-variant surge, the modifed 
order targets only those regions currently experiencing sky-
rocketing rates. 86 Fed. Reg. 43244, 43245, 43250 (2021). If 
a covered county “no longer experiences substantial or high 
levels of community transmission,” the order “will no longer 
apply” there. Id., at 43250. To illustrate the difference, 
when we denied applicants' last motion, fewer than 20% of 
counties would have been covered under the modifed mora-
torium order's criteria. See CDC, COVID–19 State Profle 
Report 476 (June 25, 2021). Today, however, that fgure is 
over 90%. See infra, at 772. 
To be protected from eviction, a tenant must reside in a 
covered area and attest that he or she: 
(1) has “used best efforts to obtain all available govern-
mental assistance for rent or housing”; 
(2) satisfes certain income requirements; 
(3) is unable to pay rent “due to substantial loss of 
household income, loss of compensable hours of work or 
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768 ALAB AMA ASSN. OF REALTORS v. DEPARTMENT 
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Breyer, J., dissenting 
wages, a lay-off, or extraordinary out-of-pocket medical 
expenses”; 
(4) continues to “us[e] best efforts to make timely par-
tial rent payments that are as close to the full rent pay-
ment as . . . permit[ted]”; and 
(5) has “no other available housing options.” 86 Fed. 
Reg. 43245 (footnote omitted). 
Unlike under New York's moratorium, see Chrysafs v. 
Marks, 591 U. S. ––– (2021), landlords remain free to “chal-
leng[e]” in court “the truthfulness of a tenant's . . . declara-
tion” that he or she qualifes for the order's protection. 86 
Fed. Reg. 43251. 
The CDC issued this modifed moratorium order (like its 
prior moratorium order) pursuant to its powers under 
§ 361(a) of the Public Health Service Act. That provision 
“authorize[s]” the CDC: 
“[T]o make and enforce such regulations as in [its] judg-
ment are necessary to prevent the introduction, trans-
mission, or spread of communicable diseases [interstate]. 
For purposes of carrying out and enforcing such regula-
tions, the Surgeon General may provide for such inspec-
tion, fumigation, disinfection, sanitation, pest extermina-
tion, 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.” 42 U. S. C. § 264(a). 
The statute's frst sentence grants the CDC authority to 
design measures that, in the agency's judgment, are essential 
to contain disease outbreaks. The provision's plain meaning 
includes eviction moratoria necessary to stop the spread of 
diseases like COVID–19. When Congress enacted § 361(a), 
public health agencies intervened in the housing market by 
regulation, including eviction moratoria, to contain infection 
by preventing the movement of people. See, e. g., 5,589 New 
Cases in One Day Break Infuenza Record, N. Y . Times, 
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Breyer, J., dissenting 
Jan. 29, 1920, section 1, pp. 1–2, col. 1 (“ `[T]he Health Depart-
ment . . . instruct[s] all landlords that no person suffering 
from [infuenza and pneumonia] can be removed under any 
condition whatever without the sanction of the Health De-
partment . . . ' ”). If Congress had meant to exclude these 
types of measures from its broad grant of authority, it likely 
would have said so. 
Section 361(a)'s second sentence is naturally read to ex-
pand the agency's powers by providing congressional au-
thorization to act on personal property when necessary. 
See FTC v. American Tobacco Co., 264 U. S. 298, 305–306 
(1924). It could also be read to provide emphasis regarding 
particular enforcement measures. See Ali v. Federal Bu-
reau of Prisons, 552 U. S. 214, 226 (2008). 
Applicants urge, and today's per curiam agrees, that the 
second sentence should instead be read to cabin the CDC's 
authority. Not only does that reading lack a clear statutory 
basis but the second sentence goes on to empower the CDC 
to take “other measures, as in [its] judgment may be neces-
sary.” 42 U. S. C. § 264(a). Furthermore, reading the pro-
vision's second sentence to narrow its frst would undermine 
Congress' purpose. As a key drafter explained, “[t]he sec-
ond sentence of subsection (a)” was written not to limit the 
broad authority contained in the frst sentence, but to “ex-
pressly authorize . . . inspections and . . . other steps neces-
sary in the enforcement of quarantine.” Hearings on H. R. 
3379 before the Subcommittee of the Committee on Inter-
state and Foreign Commerce, 78th Cong., 2d Sess., 139 
(1944). 
The per curiam also says that Congress must speak more 
clearly to authorize the CDC to address public health crises 
via eviction moratoria. But it is undisputed that the statute 
permits the CDC to adopt signifcant measures such as quar-
antines, which arguably impose greater restrictions on indi-
viduals' rights and state police powers than do limits on evic-
tions. Indeed, the current Congress did not bristle at the 
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770 ALAB AMA ASSN. OF REALTORS v. DEPARTMENT 
OF HEALTH AND HUMAN SERVS. 
Breyer, J., dissenting 
Government's reading of the statute. In 2020, Congress 
extended the CDC's moratorium “issued . . . under section 
361 of the Public Health Service Act.” Consolidated Appro-
priations Act, 2021, Pub. L. 116–260, § 502, 134 Stat. 2078– 
2079. 
In any event, lower courts have split on this question. 
Compare Alabama Assn. of Realtors v. Department of 
Health and Human Servs., 2021 WL 2221646, *2 (CADC, 
June 2, 2021), with Tiger Lily, LLC v. United States Dept. 
of Housing and Urban Development, 5 F. 4th 666, 669–670 
(CA6 2021). Given the split among the Circuits, it is at least 
hard to say that the Government's reading of the statute is 
“demonstrably wrong.” See Coleman v. Paccar Inc., 424 
U. S. 1301, 1304 (1976) (Rehnquist, J., in chambers). At min-
imum, there are arguments on both sides. 
Certainly this Court did not resolve the question by deny-
ing applicants' last emergency motion, whatever one Justice 
might have said in a concurrence. The scope of that chal-
lenged moratorium, the balance of the equities, and the pub-
lic interest were all different. As is typical in this Court's 
emergency orders denying extraordinary relief, we said al-
most nothing about our reasons for declining to act. 
Second, the balance of equities strongly favors leaving the 
stay in place. Applicants say they have lost “thousands of 
dollars” in rental income. See Application 32. That injury 
is lessened by the moratorium order's directive that tenants 
have an obligation to make “as close to the full rent pay-
ment” as possible. 86 Fed. Reg. 43245. And to compensate 
for the shortfall, Congress has appropriated more than $46.5 
billion to help pay rent and rental arrears. See § 501, 134 
Stat. 2070–2078 (appropriating $25 billion); American Rescue 
Plan Act, 2021, Pub. L. 117–2, § 3201(a)(1), 135 Stat. 54 (ap-
propriating $21.5 billion more). It may, as applicants say, 
take time to get that money—and that is an injury. 
But compare that injury to the irreparable harm from va-
cating the stay. COVID–19 transmission rates have spiked

Cite as: 594 U. S. 758 (2021) 771 
Breyer, J., dissenting 
in recent weeks, reaching levels that the CDC puts as high 
as last winter: 150,000 new cases per day. 
Source: CDC, Trends in Number of COVID–19 Cases and Deaths in the 
US Reported to CDC, https://covid.cdc.gov/covid-data-tracker/#trends_ 
dailycases. 
To date, the CDC estimates that 38,150,911 Americans have 
been sickened. Ibid. 629,139 have died. Ibid. This 
week, the CDC calculates average new daily hospital ad-
missions at 12,209. See CDC, New Admissions of Patients 
with Confrmed COVID–19, https://covid.cdc.gov/covid-data-
tracker/#new-hospital-admissions. The number of patients 
hospitalized with COVID–19 is up 13.3% from last week. 
See CDC, Prevalent Hospitalization of Patients With Con-
frmed COVID–19, https://covid.cdc.gov/covid-data-tracker/ 
#hospitalizations. 
Look back at the order's criteria for temporary eviction 
relief. The CDC targets only those people who have no-
where else to live, in areas with dangerous levels of commu-
nity transmission. These people may end up with relatives, 
in shelters, or seeking beds in other congregant facilities 
where the doubly contagious Delta variant threatens to 
spread quickly. See CDC, Delta Variant: What We Know 
About the Science, https://www.cdc.gov/coronavirus/2019-
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ncov/variants/delta-variant.html (Delta variant is “more than 
2x as contagious as previous variants” and may “cause more 
severe illness than previous strains in unvaccinated per-
sons”). Absent the current stay, the CDC projects a strong 
“likelihood of mass evictions nationwide” with public-health 
consequences that would be “diffcult to reverse.” 86 Fed. 
Reg. 43247, 43252. 
Third, the public interest is not favored by the spread of 
disease or a court's second-guessing of the CDC's judgment. 
The CDC has determined that “[a] surge in evictions could 
lead to the immediate and signifcant movement of large 
numbers of persons from lower density to higher density 
housing. . . when the highly transmissible Delta variant is 
driving COVID–19 cases at an unprecedented rate.” Id., at 
43248. The CDC cites models showing up to a 30% in-
creased risk of contracting COVID–19 for some evicted peo-
ple and those who share housing with them after displace-
ment. Ibid. The CDC invokes studies fnding nationally 
over 433,000 cases and over 10,000 deaths may be traced to 
the lifting of state eviction moratoria. Ibid. 
The public interest strongly favors respecting the CDC's 
judgment at this moment, when over 90% of counties are 
experiencing high transmission rates. See CDC, COVD–19 
Integrated County View, https://covid.cdc.gov/covid-data-
tracker/#county-view. That fgure is the highest it has been 
since at least last winter. See CDC, COVID–19 State Pro-
fle Report 372 (Aug. 20, 2021). It was in the single digits 
when we considered the CDC's previous moratorium order 
and denied applicants' earlier motion. See CDC, COVID– 
19 State Profle Report 476 (June 25, 2021). 
On applicants' last trip to this Court, they argued that the 
“downward trend in COVID–19 cases and the effectiveness 
of vaccines” left “no . . . public-health rationale for the 
[CDC's then-operative eviction] moratorium.” Application 
in No. 20A169, p. 4. These predictions have proved tragi-
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Cite as: 594 U. S. 758 (2021) 773 
Breyer, J., dissenting 
cally untrue. Today they show just how little we may pre-
sume to know about the course of this pandemic. 
Applicants raise contested legal questions about an impor-
tant federal statute on which the lower courts are split and 
on which this Court has never actually spoken. These ques-
tions call for considered decisionmaking, informed by full 
briefng and argument. Their answers impact the health of 
millions. We should not set aside the CDC's eviction mora-
torium in this summary proceeding. The criteria for grant-
ing the emergency application are not met. I respectfully 
dissent. 
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Retrieval chunks

• #1

  PRELIMINARY PRINT Volume 594 U. S. Part 2 Pages 758–773 OFFICIAL REPORTS OF THE SUPREME COURT August 26, 2021 REBECCA A. WOMELDORF reporter of decisions Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to no…

• #2

  But the second sentence informs the grant of authority by illustrating the kinds of measures that could be necessary. Reading both sentences together, rather than the frst in isolation, it is a stretch to maintain that § 361(a) gives the CDC the authority to impose this eviction moratorium. Even if the text were a…

• #3

  prehensive opinion concluding that the statute on which the CDC relies does not grant it the authority it claims. The case has been thoroughly briefed before us—twice. And careful review of that record makes clear that the applicants are virtually certain to succeed on the merits of their argu- ment that the CDC …

• #4

  “The Surgeon General, with the approval of the [Secre- tary 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 coun- tries into the States or possessions, or f…

• #5

  a stay; (3) whether issuance of the stay will substanti- ally injure the other parties interested in the proceed- ing; and (4) where the public interest lies”). The D. C. Circuit agreed, though it rated the Government's argu- ments more highly. Alabama Assn. of Realtors v. Depart- ment of Health and Human Servs.,…

• #6

  tifed under the governing four-factor test. See Nken, 556 U. S., at 434. We agree. A The applicants not only have a substantial likelihood of success on the merits—it is diffcult to imagine them losing. The Government contends that the frst sentence of § 361(a) gives the CDC broad authority to take whatever meas…

• #7

  issues at stake are not merely fnancial. The moratorium intrudes into an area that is the particular domain of state law: the landlord-tenant relationship. See Lindsey v. Nor- met, 405 U. S. 56, 68–69 (1972). “Our precedents require Congress to enact exceedingly clear language if it wishes to signifcantly alter t…

• #8

  interests have decreased. Since the District Court entered its stay, the Government has had three additional months to distribute rental-assistance funds to help ease the transition away from the moratorium. Whatever interest the Govern- Page Proof Pending Publication 766 ALAB AMA ASSN. OF REALTORS v. DEPARTMENT …

• #9

  1301, 1305 (1987) (O'Connor, J., in chambers)). Those ac- cepted factors are “(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 oth…

• #10

  The CDC issued this modifed moratorium order (like its prior moratorium order) pursuant to its powers under § 361(a) of the Public Health Service Act. That provision “authorize[s]” the CDC: “[T]o make and enforce such regulations as in [its] judg- ment are necessary to prevent the introduction, trans- mission, o…

• #11

  sary.” 42 U. S. C. § 264(a). Furthermore, reading the pro- vision's second sentence to narrow its frst would undermine Congress' purpose. As a key drafter explained, “[t]he sec- ond sentence of subsection (a)” was written not to limit the broad authority contained in the frst sentence, but to “ex- pressly authori…

• #12

  dollars” in rental income. See Application 32. That injury is lessened by the moratorium order's directive that tenants have an obligation to make “as close to the full rent pay- ment” as possible. 86 Fed. Reg. 43245. And to compensate for the shortfall, Congress has appropriated more than $46.5 billion to help p…

• #13

  consequences that would be “diffcult to reverse.” 86 Fed. Reg. 43247, 43252. Third, the public interest is not favored by the spread of disease or a court's second-guessing of the CDC's judgment. The CDC has determined that “[a] surge in evictions could lead to the immediate and signifcant movement of large numb…