Governor Cuomo Ends State of Emergency in New York; Supreme Court upholds moratorium on CDC deportations | Morrison & Foerster LLP

On June 23, 2021, New York Governor Andrew Cuomo ad the end of the state of emergency in the event of a disaster, it first declared on March 7, 2020 to contain the spread of COVID-19. Citing dramatically reduced infection rates and increased vaccination rates, the governor’s office announced that the public health emergency would expire after June 24, 2021. “We are starting to write a new chapter for a post-COVID New York City – the state disaster the emergency is coming to an end and we can focus on reimaging, rebuilding and renewing our state, ”the governor said in his announcement. This new chapter marks the end of the exercise of emergency powers during the COVID-19 era that Governor Cuomo claimed by his Decree of March 7, which allowed him to temporarily suspend or change state laws relating to consumer protection, al fresco dining, and public gatherings, among others. Still, some federal guidelines remain in place in New York City, including the need to wear a mask when traveling on public transportation or in hospitals, nursing homes or correctional facilities. New York also adopted the Centers for Disease Control and Prevention (CDC) Interim public health recommendations for fully immunized persons (the “recommendations“), published on May 13, 2021. So while companies can choose to require masks and social distancing, they can also adhere to the recommendations, which only encourage unvaccinated people to wear masks in most settings.

As the CDC continues to reassess the Recommendations, its director, Dr Rochelle Walensky, extended the agency’s national moratorium on residential evictions (the “Order”) For an additional month, until July 31, 2021. The order has been the subject of intense scrutiny by federal courts across the country, as we discussed in our March 4, March 15, and May 6 customer alerts. More recently we have provided an update at Alabama Association case, which a coalition of landlords and realtors first brought against the CDC to prevent its continued enforcement of the order in violation, they say, of federal law and the U.S. Constitution (Association of Realtors of Alabama, et al. v. US Dep’t of Health and Human Services, et al., Case No.1: 20-cv-03377, United States District Court for the District of Columbia). On May 6, 2021, District Judge Dabney Friedrich stayed her decision to set aside the order, which the United States Court of Appeals for the District of Columbia Circuit confirmed by by curiame order on June 2, 2021. This DC Circuit ruling resulted in an appeal to the United States Supreme Court, where judges assessed the owner’s plaintiffs’ request to set aside Judge Friedrich’s stay.

On June 29, 2021, the Supreme Court tightly ruled, 5 to 4, in favor of the CDC, refusing to cancel the stay (Alabama Association of Realtors, et al. v. Department of Health and Human Services, et al., 594 United States ____ (2021)). While Justices Thomas, Alito, Gorsuch and Barrett have reportedly ended the moratorium on CDC evictions, Chief Justice Roberts, joined by Justices Kavanaugh, Kagan, Sotomayor and Breyer, voted against the plaintiffs’ request. In his concurring opinion, Judge Kavanaugh cited his agreement with Judge Friedrich that the CDC had exceeded its statutory authority. Still, he voted not to cancel the Order mainly because it expires so soon: “[These] a few weeks [until July 31] will allow for an additional and more orderly distribution of the rent assistance funds allocated by Congress. With his approval, Justice Kavanaugh clarified that any proposal to extend the order beyond July 31, he said, would require legislation allowing Congress to allow it. President Biden’s administration said that the recent CDC extension is for “one last month,” suggesting, perhaps, that there is no intention to extend the order further.

We will continue to monitor this case and related issues, and provide updates. Please do not hesitate to contact the Morrison & Foerster team if you have any questions.

Michael Machado, forensic scientist in our New York office, helped draft this alert.

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