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

P R E L I M I N A R Y P R I N T
Volume 594 U. S. Part 2
Pages 758–773
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
August 26, 2021
REBECCA A. WOMELDORF
reporter of decisions
Page Proof Pending Publication
N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.

Page Proof Pending Publication
758 OCTOBER
TERM, 2020
Syllabus
ALABAMA ASSOCIATION OF REALTORS et al. v.
DEP
ARTMENT 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
Page Proof Pending Publication

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:
Page Proof Pending Publication

Cite
as: 594 U. S. 758 (2021)
761
Per Curiam
“The Surgeon General, with the approval of the [Secre-
t
ary 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-
Page Proof Pending Publication

Page Proof Pending Publication
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
Rea
ltors 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
Page Proof Pending Publication

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 clai med author ity under § 361(a) wou ld 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
Page Proof Pending Publication

Cite
as: 594 U. S. 758 (2021)
765
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-
Page Proof Pending Publication

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
Page Proof Pending Publication

Cite
as: 594 U. S. 758 (2021)
767
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
Page Proof Pending Publication

768 ALAB
AMA ASSN. OF REALTORS v. DEPARTMENT
OF HEALTH AND HUMAN SERVS.
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,
Page Proof Pending Publication

Cite
as: 594 U. S. 758 (2021)
769
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
Page Proof Pending Publication

Page Proof Pending Publication
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-
Page Proof Pending Publication

772 ALAB
AMA ASSN. OF REALTORS v. DEPARTMENT
OF HEALTH AND HUMAN SERVS.
Breyer, J., dissenting
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-
Page Proof Pending Publication

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.
Page Proof Pending Publication