The Supreme Court issued a 5-4 decision which will allow the CDC’s eviction moratorium to remain in place until the end of July.

The Supreme Court on Tuesday ruled to keep the federal eviction moratorium to in place, in a 5-4 decision in which Chief Justice John Roberts and Justice Brett Kavanaugh joined with liberals.

The decision is a blow for the National Association of Realtors, the powerful lobbying group that funded the challenge to the pandemic-related moratorium on behalf of two of its chapters…

“Landlords have been losing over $13 billion every month under the moratorium, and the total effect of the CDC’s overreach may reach up to $200 billion if it remains in effect for a year,” NAR said in its application for Supreme Court intervention.

The history of the CDC’s eviction moratorium is somewhat convoluted. I wrote about it last month. Originally the moratorium was put in place by Congress last year. That moratorium wasn’t renewed so last August President Trump asked the HHS Secretary to see what he could do. In September the CDC issued its own moratorium which was set to expire at the end of the year. Congress then got involved again and passed a one month extension which would last until the end of January. Then the CDC extended it again until the end of March and then again until the end of June. Last week the CDC extended the moratorium again for an additional month, saying it would be the final extension.

Meanwhile lawsuits had been brought to end the moratorium and over the past several months three different federal judges have ruled that the CDC has no authority to order an eviction moratorium. The first was a judge in Texas back in February. Then in March a judge Ohio said the same thing. Finally in May a judge in Washington, DC reached the following conclusion: “The question for the Court is a narrow one: Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not.”

But it seems the moratorium survived thanks largely to Judge Kavanaugh who agreed it could remain in place until the end of July even though he said the CDC didn’t have authority to issue it in the first place:

As he often does, Kavanaugh wrote to explain why he voted to allow the moratorium to remain in place. On the one hand, he said he agreed with the District Court that the CDC exceeded its statutory authority by issuing a nationwide moratorium.

But, he said, because the CDC has said it will end the moratorium in a few weeks he would allow it to remain in place. He said the extra weeks will “allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds.”

Kavanaugh made clear however, that if the government were to extend the moratorium past July 31, it would need “specific congressional authorization.”

I don’t get his reasoning here. Either the CDC has the authority to create and extend this moratorium or it does not. If Kavanaugh agrees it does not then he should have voted with the other four Justices who also felt likewise and that would be the end of it. Instead he’s allowing an extension to remain in place which he should never have been issued in the first place. That’s the motivated reasoning you’d expect from a liberal judge who is looking at the preferred outcome rather than the law. And what happens if the CDC reverses course and issues another two month extension next week? Will Kavanaugh suddenly switch sides and if so on what basis?