A majority of Justices of the Supreme Court had said that only Congress could pass an eviction moratorium – that this was not a pre-existing power of the CDC. And though both houses of Congress and the Presidency are held by the same party, they did not act.

The Court previously let the eviction moratorium stand since it was about to expire July 31, and the federal government stated it wasn’t going to be extended. Then the Biden administration extended it, and the legal challenge proceeded back through the courts.

The Supreme Court lifted the stay on a lower court’s injunction. That doesn’t end the eviction moratorium immediately, District Courts must still enter final judgments that bar enforcement of the rule. Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor dissented. President Biden himself had suggested the extension of the moratorium was likely illegal, but he hoped it would take awhile for that to be determined definitively.

The court’s majority opinion was unusually and strikingly clear: “The applicants not only have a substantial likelihood of success on the merits – it is difficult to imagine them losing.”

This opinion’s key passage makes the exact argument I’ve offered on this site for why CDC authority – on which the TSA mask rule relies – isn’t as broad as the administration claims and upon the mask rule rests. (see from March and after the Court’s eaerlier eviction ruling),

The Government contends that the first sentence of §361(a) gives the CDC broad authority to take whatever measures it deems necessary to control the spread of COVID-19, including isssuing 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 directly 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 interstate 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 COVID-19. This downstream connection between eviction and the interstate spread of disease is markedly different from the direct targeting of disease that characterizes the measures identified in the statute. Reading both sentences together, rather than the first in isolation, it is a stretch to maintain that §361(a) gives the CDC the authority to impose this eviction moratorium.

The court reads 42 U.S.C. § 264, narrowly and this reading binds the federal government. The mask mandate, like the eviction moratorium, is a power not mentioned in any statute nor substantially similar to a power mentioned in statute.

The mask rule does not involve “identifying, isolating and destroying the disease itself” but instead assumes that “some subset [of passengers] might move from one State to another…while infected infected with COVID-19” and “This downstream connection between” mask-wearing by everyone “and the interstate spread of disease is markedly different from the direct targeting of disease that characterizes the measures identified in the statute.”

Airlines of course required masking before the government order went into effect. Their rules were both tighter (no medical exceptions at United, American, Southwest, JetBlue) and more flexible (exemption with medical consult and for young children at Delta). If you think a mask mandate is good policy, remember that there was one before the federal government got involved with this 7 months ago.

In other words, mask mandates were in place before the federal rule and airlines could impose them even without the federal rule. That rule was duplicative when instituted, and vacating it might have zero effect if the airlines found it still to be useful. I think wearing masks – of higher quality, properly fitted – is a good idea, and that the single ply paper strip with two strings that meets the current requirement is silly (some airlines in Europe have stricter rules).

So far litigation over the mask rule has been limited. A single pro se litigant sought to have Justice Thomas on his own vacate the mandate without prior action by any court. That wasn’t ever likely to happen. It’s not clear that the mask mandate will be fully tested before it expires, even with the mandate’s extension into January 2022.