On June 29, 2021, five justices of the U. S. Supreme Court agreed that the Biden Administration’s eviction moratorium violated separation of powers. However, the court left the moratorium in place. Justice Kavanaugh issued a concurring opinion in Alabama Association of Realtors versus Department of Health and Human Services, agreeing with the dissenters that the Biden administration’s eviction moratorium exceeded any existing statutory authority.

But because the moratorium was set to expire at the end of July, Kavanaugh declined on equitable grounds to vote to lift the lower court’s stay of its ruling against the moratorium, to give the administration time to (1) distribute rental assistance funds already authorized by Congress and (2) to secure the new legislation that would be needed to support an eviction moratorium going forward if it chose to do so.