SCOTUS: REALTORS’ REPLY IN SUPPORT OF EMERGENCY APPLICATION TO VACATE MORATORIUM STAY PENDING APPEAL
No. 21A23
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INTRODUCTION
The government’s opposition confirms that this Court should vacate the stay preserving the fourth extension of the CDC’s eviction moratorium. The government does not—and cannot—dispute that this Court should, and very likely will, grant review upon final disposition in the court of appeals. Nor does the government dispute that in light of divergent rulings from the Sixth and D.C. Circuits, landlords face federal criminal penalties depending on where they operate. It does not retreat from the position that the CDC can do anything it deems “necessary” to prevent the spread of any contagious disease, from COVID-19 to the common cold. And it offers no materially new legal arguments in defense of the moratorium, which continues to cost landlords across the country billions of dollars every month.
Tellingly, the government also never explains why the CDC allowed the moratorium to expire three days before the President decided to extend it. The only plausible explanation for the extended moratorium is that it was issued in response to political pressure from Capitol Hill for the express purpose of using litigation delays to distribute more rental assistance. Nearly a year of overreach is enough. This Court should now give effect to the district court’s final judgment by lifting the stay pending appeal. At least five Justices would have vacated the stay after July 31. Vacatur is all the more warranted today given the Executive Branch’s use of the judicial process to extend an unlawful policy on the basis of a pretextual rationale.
CONCLUSION
This Court should vacate the district court’s May 14, 2021 order staying its final judgment in full and leave that judgment in force pending the D.C. Circuit’s issuance of a decision on the merits and the opportunity to seek review of that decision from this Court.
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