Nancy Pelosi’s dubious claim about who can extend the eviction moratorium

EDITOR’S NOTE, Aug. 4, 2021: A few hours after we published this fact-check, the CDC announced it was issuing a "new order temporarily halting evictions in counties with heightened levels" of coronavirus transmission. This does not change the rating of this fact-check, because the CDC order was new rather than an extension, and because the legality of the new order remains uncertain. In the meantime, this follow-up article addresses the challenges awaiting the new CDC approach.

The White House and House Speaker Nancy Pelosi went public this week with their differences over an expiring moratorium on evictions, an urgent issue for millions of Americans.

The moratorium, which was implemented by the Centers for Disease Control and Prevention in September 2020 during the coronavirus pandemic and extended three times, expired on July 31. At that point, President Joe Biden called on Congress to approve an extension, but facing near-certain rejection in the Senate, Pelosi and her top Democratic lieutenants said it was the executive branch’s job to take unilateral action.

In an Aug. 1 tweet, Pelosi wrote: "The CDC has the power to extend the eviction moratorium. As they double down on masks, why wouldn't they extend the moratorium in light of (the) delta variant?"

But Ohio Attorney General Dave Yost, a Republican, called foul in a reply to Pelosi’s tweet. Yost said, "The Supreme Court ruled that the CDC did not have authority to issue the eviction moratorium — but that Congress does."

Constitutional law experts told us the issue is a little muddier than either politician would have it. However, they agreed that Pelosi overstated her case, because a majority of Supreme Court justices recently said the opposite.

RELATED STORY: What’s happening with the federal eviction moratorium and rental assistance?

Lawsuits in several states challenged the moratorium as an overreach of federal power. One case, from the Alabama Realtors Association, made it to the U.S. Supreme Court. 

Technically, the Supreme Court ruled on a motion to overturn a lower court’s stay order — a procedural ruling that did not officially address the merits of the case. However, the statement issued by the court was fairly transparent about where a majority of justices stood.

Five justices — the three more liberal justices, plus Chief Justice John Roberts and Associate Justice Brett Kavanaugh — supported keeping the moratorium in place. However, Kavanaugh emphasized in his appended statement that he agreed to continuing the moratorium only because it was about to end. 

As a matter of law, Kavanaugh wrote, he thought extending the moratorium further was unconstitutional.

"In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31," Kavanaugh wrote.

On one hand, Kavanaugh’s explanatory statement is something less than binding law, legal experts told PolitiFact. 

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Kavanaugh’s statement came in a procedural ruling, so the court’s action "carries less weight than a ruling on the merits after full briefing, oral argument, and a written opinion on the merits," said Carl Tobias, a law professor at the University of Richmond.

Also, Kavanaugh’s opinion was a concurrence by one justice, rather than a statement signed by a clear majority, Tobias said.

On the other hand, Kavanaugh’s statement seemed to align him on the merits of the case with the four more conservative justices, and his statement offered a clear roadmap to the court’s thinking.

"The court very likely signaled how it would rule on the question of whether the CDC has the authority to extend the eviction moratorium," said Jessica Levinson, a professor at Loyola Law School. "Most federal agencies would be reluctant to ignore, or proceed in the face of such an indication."

Pelosi’s office said she doesn’t believe the court’s reasoning closes the door on executive authority to extend the moratorium.

As evidence, her office pointed to an Aug. 2 statement by White House Press Secretary Jen Psaki that said, "Our team is redoubling efforts to identify all available legal authorities to provide necessary protections."

"They are still trying to find legal avenues," said Drew Hammill, Pelosi’s deputy chief of staff.  "The speaker believes they exist."

However, Psaki’s statement seemed to acknowledge what Pelosi didn’t.

"Unfortunately, the Supreme Court declared on June 29th that the CDC could not grant such an extension without ‘clear and specific congressional authorization (via new legislation),’" Psaki said. "To date, CDC Director Rochelle Walensky and her team have been unable to find legal authority for a new, targeted eviction moratorium."

Legal experts aren’t convinced that a legal argument can be found to turn around a majority of justices.

"It is possible that some clever executive branch lawyer will come up with an argument that has not been raised before, but it is unlikely that there will be an argument that’s persuasive to the court," said Jonathan H. Adler, a law professor at Case-Western Reserve University.

Tobias agreed. "The speaker’s statement seems like an overstatement," he said.

Pelosi said, "The CDC has the power to extend the eviction moratorium."

Pelosi makes it sound as if the legal authority is a certainty, but even the most generous reading of the law’s status today is that it’s inconclusive. And legal experts told PolitiFact that it’s more like a long shot.

The lack of a formal Supreme Court ruling on the merits leaves some uncertainty over the law. But at least five justices in a procedural ruling sent a clear signal that they don’t believe the executive branch has that power.

Pelosi’s degree of certitude about the law ignores critical facts that would give a different impression. We rate the statement Mostly False.