No.

21A23
________________________________________________________________
________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

ALABAMA ASSOCIATION OF REALTORS, ET AL., APPLICANTS

v.

DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL.

_______________

RESPONSE IN OPPOSITION
TO APPLICANTS’ EMERGENCY APPLICATION
TO VACATE THE STAY PENDING APPEAL ISSUED
BY THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

_______________

BRIAN H. FLETCHER
Acting Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

________________________________________________________________
________________________________________________________________
 IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 21A23

ALABAMA ASSOCIATION OF REALTORS, ET AL., APPLICANTS

v.

UNITED STATES OF AMERICA

_______________

RESPONSE IN OPPOSITION
TO APPLICANTS’ EMERGENCY APPLICATION
TO VACATE THE STAY PENDING APPEAL ISSUED
BY THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

_______________

The Acting Solicitor General, on behalf of the Department of

Health and Human Services, et al., respectfully submits this

response in opposition to applicants’ emergency application to

vacate the stay pending appeal entered by the United States

District Court for the District of Columbia in this case.

To curb the spread of COVID-19, the Centers for Disease

Control and Prevention (CDC) issued an order adopting a temporary

moratorium on certain residential evictions in September 2020.

Shortly thereafter, Congress extended the effective date specified

in the CDC’s original order in legislation that recognized that

the order was a valid exercise of the CDC’s statutory authority.

The CDC itself then further extended the original moratorium until
 2

July 31, 2021, based on the evolving public health challenges posed

by an unprecedented pandemic.

The order challenged here was issued on August 3, 2021, in

response to “recent, unexpected developments in the trajectory of

the COVID-19 pandemic, including the rise of the Delta variant.”

Temporary Halt in Residential Evictions in Communities with

Substantial or High Levels of Community Transmission of COVID-19

to Prevent the Further Spread of COVID-19, 86 Fed. Reg. 43,244,

43,245 (Aug. 6, 2021) (August Order). The August Order is more

targeted than the original order and its extensions, but rests on

the same statutory authority to “make and enforce such regulations

as in [the agency’s] judgment are necessary to prevent the

introduction, transmission, or spread of communicable diseases

* * * from one State or possession into any other State or

possession.” 42 U.S.C. 264(a).

In earlier proceedings, the district court held that the

original moratorium exceeded the CDC’s authority, but stayed

vacatur of the moratorium pending appeal. The court of appeals

and then this Court denied applicants’ emergency motions to vacate

the stay. The CDC stated at the time that it planned to end the

moratorium on July 31, in the absence of an unexpected change in

the trajectory of the pandemic.

The trajectory of the pandemic has since changed --

unexpectedly, dramatically, and for the worse. As of August 19,

2021, the seven-day average of daily new cases is 130,926, nearly

 3

a ten-fold increase over the rate when this Court ruled. See CDC,

COVID Data Tracker: Trends in Number of COVID-19 Cases and Deaths

in the US Reported to CDC, by State/Territory,

https://go.usa.gov/xFRXv. Projections suggest that case rates

will continue to rise in the coming weeks. See CDC, COVID Data

Tracker: United States Forecasting, https://go.usa.gov/xFRFQ.

New evidence suggests that the Delta variant is more than twice as

transmissible as the original strains of SARS-CoV-2; that even

vaccinated individuals who become infected with the Delta variant

may transmit the virus to others; and that the Delta variant may

increase the risk of breakthrough infections among vaccinated

persons. See CDC, Delta Variant, https://go.usa.gov/xFvXXF.

As a result of the Delta variant, hospitalization rates in

some States are approaching, if not surpassing, their winter peaks.

See CDC, COVID Data Tracker: Prevalent Hospitalizations of

Patients with Confirmed COVID-19, https://go.usa.gov/xFnYg.

Children under age 12 are not yet eligible for vaccines, and the

number of children hospitalized with COVID-19 has hit a record

high. See CDC, COVID Data Tracker Weekly Review: Interpretive

Summary for August 13, 2021, https://go.usa.gov/xFvXv. As the

school year begins, more than 10,000 students and teachers have

already been quarantined. See, e.g., Jaclyn Peiser, As schools

reopen, more than 10,000 students and teachers across 14 states

are quarantined for coronavirus exposure, Wash. Post,

https://perma.cc/7T2J-MGZK. Many businesses are delaying return-

 4

to-work plans. See, e.g., Lauren Hirsch, Delays, More Masks and

Mandatory Shots: Virus Surge Disrupts Office Return Plans, N.Y.

Times (July 23, 2021), https://nyti.ms/2VryVw5. And the CDC is

again recommending indoor masking even for fully vaccinated people

in areas of substantial or high transmission. See CDC, Interim

Public Health Recommendations for Fully Vaccinated People,

https://go.usa.gov/xFRX6.

Applicants have nonetheless renewed their effort to lift the

district court’s stay of its judgment. Applicants have failed to

carry their heavy burden to justify vacating that stay, which the

court of appeals once again declined to vacate. The CDC has the

statutory authority to halt evictions to prevent the spread of

communicable disease; Congress has confirmed and relied on that

understanding; and the equities weigh even more strongly in favor

of allowing the moratorium to remain in place today than they did

when this Court last acted. The Court should therefore once again

deny the application to vacate the stay.

STATEMENT

A. Factual And Legal Background

1. The COVID-19 pandemic, which has caused more than

600,000 deaths in the United States and more than 4 million deaths

throughout the world, is one of the deadliest outbreaks of disease

in human history. In September 2020, the CDC sought to prevent

the spread of the disease by issuing an order instituting a

temporary moratorium on evictions. See Temporary Halt in

 5

Residential Evictions To Prevent the Further Spread of COVID-19,

85 Fed. Reg. 55,292 (Sept. 4, 2020) (Eviction Moratorium). The

CDC invoked its authority to “make and enforce such regulations as

in [the agency’s] judgment are necessary to prevent the

introduction, transmission, or spread of communicable diseases

* * * from one State or possession into any other State or

possession.” 42 U.S.C. 264(a).

In issuing that order, the CDC explained that evictions could

result in “multiple outcomes that increase the risk of COVID-19

spread.” Eviction Moratorium, 85 Fed. Reg. at 55,294. First,

evicted renters could readily transmit COVID-19 when they “move in

with friends or family” or move to “congregate settings” such as

“transitional housing” and “domestic violence and abuse shelters.”

Ibid. Second, evicted individuals often become homeless, and

homelessness could “contribute to the further spread of COVID-19”

given “inadequate access to hygiene, sanitation facilities, health

care, and therapeutics.” Id. at 55,295. Finally, because “[t]he

virus * * * spreads very easily” and “[a]pproximately 15% of

moves [that occur each year] are interstate,” “mass evictions would

likely increase the interstate spread of COVID-19.” Id. at 55,293,

55,295.

The original order instituted under 42 U.S.C. 264 applied

“through December 31, 2020, subject to further extension * * *

as appropriate.” Eviction Moratorium, 85 Fed. Reg. at 55,296.

That order was subsequently extended several times. Congress

 6

itself first extended the order “issued by the [CDC] under section

361 of the Public Health Service Act (42 U.S.C. 264)” until January

31, 2021, “notwithstanding the effective dates in such order.”

Consolidated Appropriations Act, 2021 (2021 Appropriations Act),

Pub. L. No. 116-260, § 502, 134 Stat. 2070-2073. In January 2021,

the CDC further extended its order through March 31, 2021. See

Temporary Halt in Residential Evictions to Prevent the Further

Spread of COVID-19, 86 Fed. Reg. 8020 (Feb. 3, 2021). In March

2021, the CDC then extended the order through June 30, 2021. See

Temporary Halt in Residential Evictions to Prevent the Further

Spread of COVID-19, 86 Fed. Reg. 16,731 (Mar. 31, 2021). Finally,

in June 2021, the CDC extended the order through July 31, 2021.

See Temporary Halt in Residential Evictions to Prevent the Further

Spread of COVID-19, 86 Fed. Reg. 34,010 (June 28, 2021) (June

Order). The CDC stated: “Although this Order is subject to

revision based on the public health landscape, absent an unexpected

change in the trajectory of the pandemic, CDC does not plan to

extend the Order further.” Id. at 34,013. That order expired on

July 31, 2021.

2. On August 3, 2021, the CDC issued a new order adopting

a moratorium on evictions, with modifications. See Temporary Halt

in Residential Evictions to Prevent the Further Spread of COVID-

19, 86 Fed. Reg. 43,247 (Aug. 6, 2021) (August Order). In the

August Order, the CDC acknowledged that it had “indicated that the

July Order would be the final extension of the nationwide eviction

 7

moratorium absent an unexpected change in the trajectory of the

pandemic.” Id. at 43,250. But the CDC stated that,

“[u]nfortunately, the rise of the Delta variant and corresponding

rise in cases in numerous counties in the United States have

altered the trajectory of the pandemic.” Ibid.

The CDC explained that, currently, “the Delta variant is the

predominant SARS-CoV-2 strain circulating in the United States,

estimated to account for 82% of cases.” August Order, 86 Fed.

Reg. at 43,246. The CDC observed that “[t]he Delta variant has

demonstrated increased levels of transmissibility compared to

other variants” and that “early evidence suggests that people who

are vaccinated and become infected with the Delta variant may

transmit the virus to others.” Ibid. It further observed that

“[t]ransmission of the Delta variant has led to accelerated

community transmission in the United States.” Ibid. Given the

“surge in cases brought forth by the highly transmissible Delta

variant,” the CDC concluded that it was necessary to issue “a new

Order temporarily halting evictions.” Id. at 43,247.

The CDC’s August Order shares many of the features of the

original eviction-moratorium order. For example, the August Order

applies only to tenants who, if evicted, would likely become

homeless or be forced to live in close quarters in a congregate or

shared-living setting. 86 Fed. Reg. at 43,245. As under the

original order and its extensions, a tenant qualifies for

protection only if he provides a sworn declaration to his landlord

 8

attesting, among other things, that he (1) “has used best efforts

to obtain all available government assistance for rent or housing”;

(2) satisfies certain income requirements; (3) cannot pay rent

“due to substantial loss of household income, loss of compensable

hours of work or wages, a lay-off, or extraordinary out-of-pocket

medical expenses”; (4) is “using best efforts to make timely

partial payments that are as close to the full payment as * * *

permit[ted]”; and (5) “has no other available housing options.”

Ibid. (footnote omitted). The landlord retains the right to

“challeng[e] the truthfulness of a tenant’s, lessee’s, or

resident’s declaration in court, as permitted under state or local

law.” Id. at 43,251; cf. Chrysafis v. Marks, No. 21A8, slip op.

(Aug. 12, 2021) (enjoining enforcement of a state eviction-

moratorium provision that, unlike the CDC’s orders, precluded the

landlord from contesting the tenant’s certification of financial

hardship).

Further, as before, the August Order “does not relieve any

individual of any obligation to pay rent * * * or comply with

any other obligation.” 86 Fed. Reg. at 43,250. And although the

order suspends evictions for the failure to pay rent, it permits

evictions for “[e]ngaging in criminal activity,” “threatening the

health or safety of other residents,” “damaging * * * property,”

“violating any applicable building code, health ordinance, or

similar regulation,” or “violating any other contractual

obligation, other than the timely payment of rent.” Ibid.

 9

In one important respect, however, the August Order is

distinct from the original order: It is “narrower” and “more

targeted.” 86 Fed. Reg. at 43,250. The original order and its

extensions applied nationwide, but the August Order applies only

“in U.S. counties experiencing substantial and high levels of

community transmission.” Ibid. (footnotes omitted). “If a U.S.

county that is covered by this Order no longer experiences

substantial or high levels of community transmission for 14

consecutive days, then this Order will no longer apply in that

county.” Ibid. Conversely, “[i]f a U.S. county that is not

covered by this Order as of August 3, 2021 later experiences

substantial or high levels of community transmission * * * ,

then that county will become subject to this Order.” Ibid. The

CDC explained that these requirements ensure that the moratorium

applies only in “specific areas of the country where cases are

rapidly increasing” and where the pandemic “likely could be

exacerbated by mass evictions.” Id. at 43,245; see id. at 43,250

(noting that the August Order targets the “hardest hit areas”).

3. When Congress extended the CDC’s original eviction-

moratorium order, it also appropriated substantial sums of money

to address rent arrears that have built up because of the pandemic.

In Section 501 of the 2021 Appropriations Act -- the section

immediately preceding the section extending the order -- Congress

allocated $25 billion to state and local governments for rental

assistance. § 501(a)(1). Those governments may use the funds to

 10

pay up to 12 months of back rent and an additional three months of

future rent for eligible tenants. § 501(c)(2). The funds are

payable directly to landlords. § 501(c)(2)(C)(i)(I). In March

2021, Congress appropriated an additional $21.5 billion in rental

assistance. See American Rescue Plan Act of 2021, § 3201(a)(1),

135 Stat. 54.

B. Proceedings Below

1. Applicants are two landlords, three companies that they

use to manage rental properties in Alabama and Georgia, and two

trade associations in Alabama and Georgia. See Compl. ¶¶ 16-22.

They filed this action in November 2020 in the United States

District Court for the District of Columbia, alleging, as relevant

here, that the CDC’s original eviction-moratorium order exceeded

the CDC’s statutory authority. Appl. App. 37a.

In May 2021, the district court granted applicants summary

judgment, holding that the original eviction moratorium exceeded

the CDC’s statutory authority. See Appl. App. 34a-53a. The court

concluded that, under circuit precedent, it was required to vacate

the original moratorium nationwide, rather than to limit relief to

the parties. Id. at 52a. The court, however, then granted the

government’s motion for a stay of the vacatur order pending appeal.

Id. at 23a-32a. The court of appeals denied applicants’ motion to

vacate the stay. See id. at 16a-22a.

 11

This Court, too, denied applicants’ request to vacate the

stay. See Appl. App. 15a. In an opinion concurring in the denial,

Justice Kavanaugh stated:

I agree with the District Court and the applicants that

the [CDC] exceeded its existing statutory authority by
issuing a nationwide eviction moratorium. * * *
Because the CDC plans to end the moratorium in only a
few weeks, on July 31, and because those few weeks will
allow for additional and more orderly distribution of
the congressionally appropriated rental assistance
funds, I vote at this time to deny the application to
vacate the District Court’s stay of its order. * * *
In my view, clear and specific congressional
authorization (via new legislation) would be necessary
for the CDC to extend the moratorium past July 31.
Ibid. (Kavanaugh, J., concurring). Four Justices would have

granted the application. Ibid.

2. After the CDC issued its August Order, applicants filed

a motion in the district court styled as an “Emergency Motion to

Enforce the Supreme Court’s Ruling and to Vacate the Stay Pending

Appeal.” Appl. App. 2a. The district court denied the motion.

Id. at 2a-14a. The court concluded that the August Order

constitutes “an extension” of the previous moratorium rather than

“an entirely new policy” and thus remains “subject to the stay” it

had previously entered. Id. at 5a. The court then determined

that, under the law-of-the-case doctrine, the court of appeals’

previous ruling declining to vacate the stay required the district

court to leave its stay in place. Id. at 8a-14a.

 12

Applicants then moved the court of appeals to vacate the stay.

Appl. App. 1a. The court denied that motion in a summary order.

Ibid.

ARGUMENT

Invoking the All Writs Act, 28 U.S.C. 1651, applicants ask

this Court (Appl. 16-40) to vacate the stay pending appeal that

was issued by the district court and that the court of appeals

twice declined to vacate. Vacatur of a stay issued below is an

extraordinary remedy. “[T]his power should be exercised with the

greatest of caution and should be reserved for exceptional

circumstances.” Holtzman v. Schlesinger, 414 U.S. 1304, 1308

(1973) (Marshall, J., in chambers). An applicant seeking vacatur

bears the burden of establishing that (1) the “case could and very

likely would be reviewed here upon final disposition in the court

of appeals”; (2) the applicant “may be seriously and irreparably

injured by the stay”; and (3) the issuance of the stay was

“demonstrably wrong” under “accepted standards.” Coleman v.

Paccar, Inc., 424 U.S. 1301, 1304 (1976) (Rehnquist, J., in

chambers); see Western Airlines, Inc. v. Teamsters, 480 U.S. 1301,

1305 (1987) (O’Connor, J., in chambers). Those accepted standards,

in turn, require a court to consider four 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 substantially injure the other parties interested in the

 13

proceeding; and (4) where the public interest lies.” Nken v.

Holder, 556 U.S. 418, 425-426 (2009) (citation omitted).

In applying those principles, the Circuit Justice or the Court

owes “significant deference” to public officials charged with

responding to the COVID-19 pandemic. South Bay United Pentecostal

Church v. Newsom, 141 S. Ct. 716, 716 (2021) (Roberts, C.J.,

concurring in the partial grant of application for injunctive

relief). Legislators and executive officials have the

“‘background, competence, and expertise to assess public health’”

and are “politically accountable” for their decisions. Ibid.

(citation omitted). Accordingly, in addressing the many emergency

applications that have arisen out of the present pandemic, the

Court and individual Justices have often recognized that they

should respect the judgments of policymakers charged with

protecting the public health. See, e.g., Roman Catholic Diocese

of Brooklyn v. Cuomo, 141. S. Ct. 63, 68 (2020) (per curiam); FDA

v. American College of Obstetricians & Gynecologists, 141 S. Ct.

578, 579 (2021) (Roberts, C.J., concurring in the grant of

application for stay); Andino v. Middleton, 141 S. Ct. 9, 10 (2020)

(Kavanaugh, J., concurring in the grant of application for stay).

In this case, applicants have not made the extraordinary

showing required to justify vacatur of the stay. They have not

shown that the court of appeals was demonstrably wrong in

concluding that the government is likely to succeed on the merits.

 14

Nor have they shown that the balance of equities justifies vacating

the stay. The application should therefore be denied.

I. The Court Of Appeals Correctly Concluded That The Government

Is Likely To Succeed On The Merits

In denying applicants’ prior request to vacate the stay, the

court of appeals concluded that the government had “made a strong

showing that it is likely to succeed on the merits.” Appl. App.

16a. That evaluation remains correct -- or, at a minimum, not so

clearly incorrect as to justify the extraordinary relief

applicants seek.

1. The statute on which the CDC relied, 42 U.S.C. 264(a),

provides:
The Surgeon General, with approval of the Secretary [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 countries 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.

Although the provision refers to the Surgeon General, later

reorganizations have transferred that authority to the Secretary

of Health and Human Services, who has in turn delegated it to the

CDC. See Appl. App. 17a n.1, 40a n.1.

Section 264(a), by its plain terms, grants the government

broad authority that encompasses the CDC’s order adopting an

 15

eviction moratorium. The first sentence of Section 264(a)

expressly authorizes the CDC to make regulations that are “in [its]

judgment” “necessary” to “prevent the introduction, transmission,

or spread of communicable diseases” from State to State. 42 U.S.C.

264(a). And by using the phrase “in his judgment” not once but

twice in Section 264(a), ibid., Congress “designated the HHS

Secretary [as] the expert best positioned to determine the need

for such preventative measures,” Appl. App. 17a.

Section 264(a)’s expansive language is no accident. The

drafters of the statute explained that “these provisions are

written in broader terms in order to make it possible to cope with

emergency situations which we cannot now foresee.” Hearing Before

a Subcomm. on Interstate & Foreign Commerce on H.R. 3379: A Bill

to Codify the Laws Relating to the Public Health Service, and for

Other Purposes, 78th Cong., 2d Sess. 64, 108, 140 (1944). Echoing

that view, the then-Surgeon General testified that authority under

Section 264 “may be very important because of the possibility that

strange diseases may be introduced in the country” and that

“[f]lexibility in dealing with such contingencies would be very

helpful.” Hearing Before a Subcomm. on Education and Labor on

H.R. 4624: An Act to Consolidate and Revise the Laws Relating to

the Public Health Service, and for Other Purposes, 78th Cong., 2d

Sess. 6. (1944).

Wherever Section 264(a)’s outer limits may lie, the

provision, at a minimum, authorizes measures designed to address

 16

“the movement of persons to prevent the spread of communicable

disease,” as the court of appeals reasoned in declining to vacate

the stay the first time applicants asked it to do so. Appl. App.

19a. Governments have long used restrictions on movement -- such

as quarantines and travel restrictions -- to prevent people from

“carrying contagion about.” Edwards v. California, 314 U.S. 160,

184 (1941) (Jackson, J., concurring). The “ensuing subsections

(b), (c), and (d) of Subsection 264,” which contain “explicit

reference[s] to HHS’s regulatory power over the movement of

persons,” confirm that Section 264(a) covers measures relating to

movement. Appl. App. 19a.

The eviction moratorium thus securely “fits within the

textual authority conferred by Section 264(a).” Appl. App. 18a.

The CDC has expressly found in issuing its order that the

moratorium is “necessary” to prevent the interstate transmission

of COVID-19. 86 Fed. Reg. at 43,251. That determination rested

on the CDC’s findings that the United States faced the risk of an

unprecedented wave of evictions; that evicted renters could

contribute to the spread of COVID-19 if they moved in with friends

and family or moved in to congregate settings; and that evicted

renters also could contribute to the spread of COVID-19 if they

became homeless. See p. 5, supra.

The CDC “narrowly crafted” the moratorium to address those

problems. Appl. App. 18a. For example, the August Order, like

the original order and its extensions, limits the suspension of

 17

evictions to renters who “otherwise would likely need to move to

congregate [or shared-living] settings where COVID spreads quickly

and easily, or would be rendered homeless and forced into shelters

or other settings that would increase their susceptibility to

COVID.” Ibid. And the August Order is even narrower than the

original order and its extensions, providing that the moratorium

applies only to counties that are “experiencing substantial or

high rates of community transmission levels of SARS-CoV-2 as

defined by CDC.” 86 Fed. Reg. at 43,245.

The very object of the moratorium, moreover, is to address

the “movement of contagious persons” that would be caused by

circumstances beyond their control. Appl. App. 19a (brackets and

internal quotation marks omitted). “Evicted renters must move,”

and a substantial number of those moves would occur interstate.

Eviction Moratorium, 85 Fed. Reg. at 55,294. The moratorium

achieves that objective in a different way than a quarantine, but

Section 264 allows the government to use new (and tailored) tools

to address new diseases. It would be strange to hold that the

government may combat infection by prohibiting the tenant from

leaving his home, but not by prohibiting the landlord from throwing

him out.

2. Even if some doubt remained about the scope of the

authority conferred by Section 264 in other contexts, Section 502

of the 2021 Appropriations Act makes clear that it authorizes an

 18

eviction moratorium like the one at issue here. Section 502

provides:
The order issued by the Centers for Disease Control and
Prevention under section 361 of the Public Health Service Act
(42 U.S.C. 264), entitled “Temporary Halt in Residential
Evictions To Prevent the Further Spread of COVID-19” (85 Fed.
Reg. 5592 (September 4, 2020) is extended through January 31,
2021, notwithstanding the effective dates specified in such
Order.

134 Stat. 2078-2079. In other words, “rather than enact its own

moratorium, Congress deliberately chose” to “embrace” and “extend”

the original order issued by the CDC. Appl. App. 18a.

In so doing, Congress recognized in express statutory text

that the order was issued “under” -- that is, in accordance with

-- “42 U.S.C. 264.” 2021 Appropriations Act § 502, 134 Stat. 2078;

see, e.g., Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519,

530-531 (2013) (defining “under” as “in accordance with”)

(brackets and citation omitted). And the essential premise of

Congress’s action was that the CDC’s order was a valid exercise of

its authority under Section 264. In Section 502, Congress did not

confer any new statutory authority. Instead, it extended the CDC’s

original order notwithstanding the order’s effective date. That

step would have been entirely ineffective if, as applicants

maintain, the order was not authorized by Section 264 and never

had any effect at all.

Congress thus legislated on the understanding that Section

264 authorizes the CDC to impose the eviction moratorium. And

that settles the interpretive question in this case. As Justice

 19

Scalia has explained, it is “the most rudimentary rule of statutory

construction” that courts must interpret statutes “in the context

of the corpus juris of which they are a part, including later-

enacted statutes.” Branch v. Smith, 538 U.S. 254, 281 (2003)

(opinion of Scalia, J.). Where, as here, “it can be gathered from

a subsequent statute in pari materia, what meaning the legislature

attached to the words of a former statute, they will amount to a

legislative declaration of its meaning, and will govern the

construction of the first statute.” Ibid. (quoting United States

v. Freeman, 44 U.S. (3 How.) 556, 564–565 (1845)); see, e.g., FDA

v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143 (2000) (“At

the time a statute is enacted, it may have a range of plausible

meanings. Over time, however, subsequent acts can shape or focus

those meanings. * * * That is particularly so where the scope of

the earlier statute is broad but the subsequent statutes more

specifically address the topic at hand.”).

At the same time that Congress recognized that the eviction

moratorium is within the CDC’s authority under Section 264,

moreover, it comprehensively addressed the circumstances arising

from tenants’ inability to pay their rent by enacting a provision

appropriating $25 billion to state and local governments for rental

assistance, followed by the appropriation of an additional $21.5

billion several months later. See pp. 9-10, supra. Congress did

not expect that the money it appropriated would reach landlords

immediately. To the contrary, Congress anticipated that it would

 20

take 30 days just to allocate those funds to state and local

governments, which in turn would establish programs to distribute

the funds to landlords and tenants. See 2021 Appropriations Act

§ 501(b)(1)(A), 134. Stat. 2070.

Congress’s actions, taken together, show that Congress

regarded the original CDC order as lawful; that Congress required

the order to remain in place through at least January 31; and that

the CDC retained the power to extend the order as necessary to

prevent a wave of evictions during the pandemic, taking into

account the pace of rental-assistance distribution. And by

applicants’ own account (Appl. 34), only $3 billion of the funds

Congress provided had been distributed as of late July, leaving

more than $43 billion to compensate landlords and make evictions

unnecessary.

3. Applicants’ contrary arguments lack merit. First,

applicants assert (Appl. 21) that the government’s reading of

Section 264(a) is “limitless.” That charge is unwarranted.

Contrary to applicants’ portrayal (Appl. 17), Section 264(a) does

not authorize any and all measures that relate in some way to

“public health”; rather, it applies only to measures to “prevent

the [international or interstate] introduction, transmission, or

spread of communicable diseases.” 42 U.S.C. 264(a). “Th[e] text

also makes a determination of necessity a prerequisite to any

exercise of Section 264 authority, and that necessity standard

constrains the granted authority in a material and substantial

 21

way.” Appl. App. 17a. Further, because the object of the eviction

moratorium is to deter the movement of potentially contagious

individuals, see p. 17, supra, the Circuit Justice or the Court

need not consider whether Section 264 would authorize other

measures. Finally, contrary to applicants’ assertion (Appl. 27)

that no legal principles constrain the CDC’s determinations of

necessity, any invocation of Section 264(a) remains subject to

review for arbitrariness and capriciousness under ordinary

principles of administrative law. See, e.g., Brown v. Azar, 497

F. Supp. 3d 1270, 1285-1289 (N.D. Ga. 2020) (considering contention

that the eviction moratorium is arbitrary and capricious).

Second, applicants argue (Appl. 20) that “[Section] 264 is

limited to disease-control measures involving the inspection and

regulation of infected property or the quarantine of contagious

individuals.” But that limitation appears nowhere in the language

of the statute. The statute empowers the CDC to adopt “such

regulations as in [its] judgment are necessary to prevent” the

interstate spread of disease; it does not limit that authority to

measures involving inspection and quarantine. 42 U.S.C. 264(a).

Other provisions of the Public Health Service Act show that, when

Congress wanted to refer to inspection or quarantine regulations,

it knew how to do so. See, e.g., 42 U.S.C. 243(a) (enforcement of

“quarantine regulations”). The provision at issue here, by

contrast, includes no such limit. Reading that unwritten

constraint into the text would countermand Congress’s deliberate

 22

decision to grant the government the flexibility needed to address

new threats to public health as they emerge.

Applicants seek (Appl. 19-20) to infer their proposed

limitation from Section 264(a)’s second sentence, which authorizes

the CDC to provide for “inspection, fumigation, disinfection,

sanitation, pest extermination, [and] destruction of animals or

articles” “[f]or purposes of carrying out and enforcing [its]

regulations.” 42 U.S.C. 264(a). As the court of appeals explained

in denying applicants’ first motion to vacate the stay, however,

applicants err in arguing that “the regulatory power under the

first sentence of Section 264(a) is limited to measures closely

akin to those the second enumerates.” Appl. App. 18a-19a. The

second sentence, by its plain terms, does not purport to define

“the substantive scope of the regulatory authority conferred” by

the first sentence, id. at 18a; rather, it empowers the CDC to

adopt additional measures “[f]or purposes of carrying out and

enforcing such regulations.” 42 U.S.C. 264(a). “That is language

of expansion, not contraction.” Appl. App. 19a. And the second

sentence itself is not limited to the additional measures

specifically enumerated; it encompasses “other measures as in [the

CDC’s] judgment may be necessary.” 42 U.S.C. 264(a). Applicants’

argument also proves too much. If taken to its logical conclusion,

the argument suggests that Section 264(a) is limited to inspection

and sanitation measures; the second sentence contains no reference

 23

to the quarantine measures that even applicants concede are

permitted.

Third, applicants (Appl. 23-29) argue that interpreting

Section 264 to authorize the CDC eviction-moratorium order raises

federalism and non-delegation concerns. Those concerns are

misplaced. This Court has explained that Congress’s commerce power

includes the authority to respond to an “interstate epidemic.”

United States v. Comstock, 560 U.S. 126, 142 (2010). Section

264(a) authorizes the CDC to adopt measures it judges necessary to

prevent the interstate spread of disease, and the CDC has judged

that the August Order is necessary to prevent the interstate spread

of COVID-19. Similarly, in applying the non-delegation doctrine,

the Court has upheld statutes that empower agencies to regulate in

the “public interest,” see National Broad. Co. v. United States,

319 U.S. 190, 225-226 (1943); to set prices that are “fair and

equitable,” see Yakus v. United States, 321 U.S. 414, 420 (1944);

and to establish air-quality standards to “protect the public

health,” see Whitman v. American Trucking Ass’n, 531 U.S. 457,

472-476 (2001) (citation omitted). The standard set out in Section

264(a) -- “necessary to prevent the [international or interstate]

introduction, transmission, or spread of communicable diseases,”

42 U.S.C. 264(a) -- is more specific than those standards.

4. Even if applicants’ arguments gave the Court some pause

about endorsing the full extent of the CDC’s view of its authority

under Section 264 -- or if the Court simply preferred to avoid

 24

addressing that consequential question here -- those arguments

would pose no obstacle to a narrow decision grounded in Congress’s

subsequent recognition that Section 264 authorizes the eviction

moratorium at issue. A decision resting on that specific

congressional action would not even arguably risk granting the CDC

“limitless” authority. Appl. 21. It would likewise pose no

concern about delegation, for Congress expressly extended the very

order under Section 264 that applicants brought this suit to

challenge. And Congress’s subsequent action also supplies “clear

congressional authorization,” Utility Air Regulatory Grp. v. EPA,

573 U.S. 302, 324 (2014), for the use of Section 264 to impose an

eviction moratorium.

Tellingly, moreover, neither applicants nor the courts that

have adopted their reading of Section 264 have offered any

persuasive response to Section 502 of the 2021 Appropriations Act.

They have understandably resisted the necessary implication of

their position, which is that Section 502 had no effect at all.

Instead, they have asserted that Section 502 “impose[d] an eviction

moratorium for a limited time,” Appl. 30, or “g[a]ve force to the

moratorium for the period it covers” by “raitf[ying]” an agency

action that was “originally unlawful.” Tiger Lily, LLC v. HUD,

No. 21-5256, 2021 WL 3121373, at *4-5 (6th Cir. July 23, 2021).

But that ignores the plain text of the statute. Congress neither

imposed a moratorium of its own nor purported to ratify an order

that had exceeded the CDC’s authority. Just the opposite: In

 25

extending the CDC’s original order, Congress presumed that the

order was valid and expressly recognized that it was an exercise

of the CDC’s authority under Section 264.

5. Applicants also invoke (Appl. 23) Justice Kavanaugh’s

opinion concurring in the denial of their previous emergency

application. See Appl. App. 15a. In the district court,

applicants argued that the concurring opinion was controlling

under Marks v. United States, 430 U.S. 188 (1977), but the district

court rejected that contention. See Appl. App. 13a-14a. The

district court explained that “[t]he Supreme Court did not issue

a controlling opinion,” that under circuit precedent “the votes of

dissenting Justices may not be combined with that of a concurring

Justice to create binding law,” and that, “because the four

dissenting Justices did not explain their votes, it is impossible

to determine which proposed disposition -- theirs or Justice

Kavanaugh’s -- is the ‘common denominator’ of the other.” Ibid.

Applicants do not appear to renew their contention that the

concurrence constitutes controlling precedent. They instead rely

on it (Appl. 23) only as persuasive authority. For the reasons

explained above, we respectfully submit that the CDC’s original

order and the August Order are authorized by statute, and that any

concerns about delegation to an agency of authority to address

important political and economic issues are met by the deliberately

broad language of Section 264 and by the specific language of

Section 502 of the 2021 Appropriations Act.

 26

The August Order, moreover, was issued in light of greatly

changed circumstances resulting from the Delta variant. At the

same time, the August Order is “narrower” and “more targeted” than

the previous moratorium. 86 Fed. Reg. at 43,250. Whereas the

previous moratorium applied nationwide, the August Order applies

only to counties that are “experiencing substantial or high rates

of community transmission levels of SARS-CoV-2 as defined by CDC.”

Id. at 43,245. “If a U.S. county that is covered by this Order no

longer experiences substantial or high levels of community

transmission for 14 consecutive days, then this Order will no

longer apply in that county.” Ibid. Those requirements ensure

that the moratorium applies only in “specific areas of the country

where cases are rapidly increasing” and where the pandemic “likely

could be exacerbated by mass evictions.” Ibid.

Applicants emphasize (Appl. 14) that more than 80% of the

Nation’s counties were experiencing substantial or high levels of

community transmission as of August 1, but that is the wrong way

to look at it. The fact that more than 80% of the Nation’s counties

have been hit hard by COVID-19 simply shows that the recent surge

in the pandemic is serious and that the threat to which the CDC

must respond is widespread. If the surge subsides, so that fewer

counties experience such transmission, the moratorium will

automatically phase out with it. That meaningfully distinguishes

the August Order from the earlier moratorium, which remained

 27

applicable throughout the Nation irrespective of improving

conditions.

In short, the CDC’s August Order falls within the authority

conferred by Congress. At the least, applicants have failed to

carry their heavy burden of establishing that the court of appeals

was demonstrably wrong in concluding, when it first denied

applicants’ first request to vacate the stay, that the government

was likely to succeed on the merits of the appeal.

II. The Balance Of Equities Also Favors Maintaining The Stay

1. A party seeking vacatur of a stay must show that the

stay “seriously and irreparably injure[s]” the party. Coleman,

424 U.S. at 1304 (Rehnquist, J., in chambers); see Western

Airlines, 480 U.S. at 1305 (O’Connor, J., in chambers). Indeed,

because vacatur is an exceptional remedy, the party seeking it

“bear[s] an augmented burden of showing * * * irreparable harm.”

Certain Named & Unnamed Non-Citizen Children & Their Parents v.

Texas, 448 U.S. 1328, 1331 (1980) (Powell, J., in chambers).

Applicants have not made that showing here, and their failure to

do so would require denial of the application without a need to

consider their likelihood of success. See Garcia-Mir v. Smith,

469 U.S. 1311, 1313 (1985) (Rehnquist, J., in chambers) (when the

applicant “ha[s] not made a showing of irreparable injury,”

“[t]here is no need to evaluate [the] likelihood of success on the

merits”).
 28

When it denied applicants’ first request to vacate the

district court’s stay, the court of appeals observed that “the

record [wa]s devoid of the requisite evidence of irreparable injury

likely to befall the landlord parties to this case.” Appl. App.

20a. It remarked, for instance, that “the record d[id] not

demonstrate any likelihood that [applicants] will lose their

businesses, that an appreciable percentage of their own tenants

* * * will be unable to repay back rent, or that financial

shortfalls are unlikely ultimately to be mitigated.” Ibid.

In seeking again to have the stay vacated, applicants could

have corrected those deficiencies by submitting evidence showing

substantial and irreparable harm. They failed to do so. They

instead continue to rely (Appl. 31) on the same declarations that

the court of appeals already found inadequate. Their failure to

submit additional evidence of harm, despite ample opportunity to

do so and the court of appeals’ previous finding that their showing

was inadequate, undermines their assertions that they are

irreparably harmed and that the balance of equities favors them.

Applicants instead assert (e.g., Appl. 31) that landlords

throughout the country have been losing up to $19 billion a month

because of the moratorium and that the rental assistance

appropriated by Congress will not suffice to cover that sum. But

applicants seeking vacatur of a stay must show that “the rights of

the parties * * * may be seriously and irreparably injured”;

they may not rely on alleged harms to strangers to the litigation.

 29

Coleman, 424 U.S. at 1304 (Rehnquist, J., in chambers) (emphasis

added). And as the government has previously explained, the

figures cited by applicants are demonstrably overstated. See D.

Ct. Doc. 26, at 15 n.4. For example, applicants’ estimate,

prepared last November, assumes that “12.6 to 17.3 million rental

households” will take advantage of the eviction moratorium, D. Ct.

Doc. 6, at *6 (Nov. 11, 2020), but more recent government

statistics indicate that around 6.4 million renter households have

reported being behind on rent. See Department of Housing and Urban

Development, Census Household Pulse Survey (Apr. 26, 2021),

https://go.usa.gov/xFH4G.

2. On the other side of the ledger, lifting the stay would

cause great harm to the government and to the public. “As the

federal agency tasked with disease control, the Department [of

Health and Human Services], and the CDC in particular, have a

strong interest in controlling the spread of COVID-19 and

protecting public health.” Appl. App. 30a. The CDC has cited --

and the district court credited when it first issued the stay --

“observational data analyses” showing that “lifting the national

moratorium will ‘exacerbate the significant public health risks’”

associated with COVID-19. Ibid. (citation omitted). For example,

the CDC has cited data showing that “lifting [state and local]

eviction moratoria led to a 40% increased risk of contracting

COVID-19 among people who were evicted and those with whom they

shared housing”; that “significant increases in COVID-19 incidence

 30

and mortality [occurred] approximately 2-3 months after [state and

local] eviction moratoria were lifted”; and that “the incidence of

COVID-19 in states that lifted their moratoria was 1.6 times that

of states that did not at 10 weeks post-lifting.” January

Extension, 86 Fed. Reg. at 8022. The CDC has also estimated that

“over 433,000 cases of COVID-19 and over 10,000 deaths could be

attributed to lifting state moratoria.” Ibid.

The concurrence in the denial of the previous application

explained that, although it agreed with applicants on the merits,

it found that the “balance of equities” favored allowing the

moratorium to remain in effect. Appl. App. 15a. The balance of

equities tips even more strongly in the government’s favor today

than it did then.

Since the Court’s denial of the previous application, the

“trajectory of the COVID-19 pandemic” has changed in “unexpected”

ways. August Order, 86 Fed. Reg. at 43,245. At the time of that

denial, the Alpha variant was “the predominant SARS-CoV-2 strain

circulating in the United States.” June Order, 86 Fed. Reg. at

34,012. Now, however, “the Delta variant is the predominant SARS-

CoV-2 strain circulating in the United States.” August Order, 86

Fed. Reg. at 43,246. More specifically, the Delta variant accounts

“for over 82% of cases as of July 17, 2021,” ibid. -- compared to

around 10% of cases in June and around 2% of cases in May, see

June Order, 86 Fed. Reg. at 34,012.

 31

The Delta variant differs in significant ways from other

variants of the virus. For example, the CDC has explained that

“[t]he Delta variant has demonstrated increased levels of

transmissibility compared to other variants.” August Order, 86

Fed. Reg. at 43,246. The CDC also has observed that “people who

are vaccinated” may suffer breakthrough infections because of the

Delta variant and then “transmit the virus to others.” Ibid.

Further, the CDC has noted that “[t]ransmission of the Delta

variant has led to accelerated community transmission in the United

States.” Ibid. Due in part to the Delta variant, the United

States has experienced a “renewed surge in cases of COVID-19.”

Id. at 43,246. “[C]ase counts rose from 19,000 cases on July 1,

2021 to 103,000 cases on July 30, 2021.” Ibid. When issuing the

August Order, the CDC noted that “[f]orecasted case counts predict

that cases will continue to rise over the next four weeks.” Ibid.

The CDC has noted that the “surge of cases spurred by the

Delta variant has confirmed that the fundamental public health

threat -- of the risk of large numbers of residential evictions

contributing to the spread of COVID-19 throughout the United States

-- continues to exist.” August Order, 86 Fed. Reg. at 43,251.

Without the August Order, the CDC has explained, “there is every

reason to expect that evictions will increase dramatically at a

time when COVID-19 infections in the United States are increasing

sharply.” Id. at 43,251-43,252. The CDC has warned that the

 32

“public health consequences” of “an increase of evictions” at this

time “would be very difficult to reverse.” Id. at 43,252.

Applicants dismiss (Appl. 35) the CDC’s concerns as

“pretextual,” but the history of this very case shows why this

Court should reject applicants’ invitation to second-guess the

CDC’s expert judgments about the necessity of the moratorium. In

their previous application, applicants confidently asserted

(20A169 Appl. 33) that “[m]atters have * * * improved.” They

argued (id. at 33-35) that the Nation was past “the height of the

pandemic,” that vaccinated Americans were “free to dispense with

masks,” that “new infections [we]re down to their lowest level

since the onset of the pandemic,” that “new infections” were

projected to “drop” in the coming weeks, and that the “public-

health landscape” was “rapidly improving.”

Things did not turn out that way. Today, the Nation is

experiencing a “renewed surge in cases”; “[f]orecasted case counts

predict that cases will continue to rise”; “[t]ransmission of the

Delta variant has led to accelerated community transmission”;

“early evidence suggests that people who are vaccinated and become

infected with the Delta variant may transmit the virus”; and the

CDC has recommended that even vaccinated people resume wearing

masks indoors in areas of substantial or high transmission. August

Order, 86 Fed. Reg. at 43,246. Further, children under the age of

12 are not yet eligible for vaccines, and the number of children

who have been hospitalized for COVID-19 has reached a record high.
 33

See p. 3, supra. The sharp contrast between applicants’ rosy

forecast and the grim reality on the ground confirms the importance

of leaving decisions about public health to politically

accountable officials who have the “background, competence, and

expertise to assess public health.” South Bay, 141 S. Ct. at 716

(Roberts, C.J., concurring in the partial grant of application for

injunctive relief) (citation omitted).

3. Applicants err in asserting (e.g., Appl. 18, 35-36) that

the balance of equities favors them because the government’s

conduct in this case has been improper or inconsistent with “the

rule of law.” The CDC issued the August Order based on its

determination that, given the rapidly worsening conditions created

by the Delta variant, a targeted moratorium is authorized by

Section 264 because it is a “reasonably necessary measure” to

“prevent the further spread of COVID-19 throughout the United

States.” 86 Fed. Reg. at 43,251; see id. at 43,252. As the White

House has since emphasized, “[t]he Administration believes that

the CDC’s new moratorium is a proper use of its lawful authority

to protect the public health.” Statement by Press Secretary Jen

Psaki on Eviction Moratorium (Aug. 13, 2021),

https://go.usa.gov/xFs4s.

Although they asserted otherwise below, applicants have now

abandoned any argument that the moratorium contravenes the order

this Court issued on June 29. With good reason: The Court denied

applicants’ motion to vacate the stay and allowed the moratorium

 34

to remain in effect. And as the district court observed, the Court

“did not issue a controlling opinion,” Appl. App. 13a -- much less

one that held that the moratorium exceeded the CDC’s statutory

authority.

Applicants quote (e.g., Appl. 2, 5, 12-13) various public

statements by the President and other White House officials.

Although sometimes articulated in terms of what the Court had

declared or made clear, those statements are best understood as an

acknowledgment that, at least as things stood on June 29, it

appeared likely that five Justices would have voted to vacate the

stay if the original moratorium had been extended past July 31.

The Executive Branch does not defy “the rule of law,” Appl. 18, by

adopting a policy that it reasonably believes to be a lawful and

urgently needed response to an unprecedented public emergency,

even if there are indications that this Court may ultimately

disagree. That is especially true where, as here, those

indications are found in a short concurring opinion and four

unexplained dissenting votes that were cast in a preliminary

posture -– and in a decision that preceded material changes to the

order itself and a dramatic worsening of the pandemic conditions

to which it responds. And having concluded that a moratorium is

within its statutory authority, the Executive Branch appropriately

took into account the fact that adopting the August Order would

“allow for additional and more orderly distribution” of

 35

“congressionally appropriated rental assistance funds.” Appl.

App. 15a (Kavanaugh, J., concurring).

CONCLUSION

The application to vacate the stay pending appeal should be

denied.

Respectfully submitted.

BRIAN H. FLETCHER
Acting Solicitor General

AUGUST 2021