September 17, 2021

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Judge Allows Biden’s Narrower Evictions Ban in Place for Now – The New York Times

6 min read

WASHINGTON — A federal judge on Friday permitted the Biden administration’s replacement evictions moratorium to continue, saying that she lacked authority to block such an emergency public-health policy even though she believed “the government is unlikely to prevail” when the matter returns to the Supreme Court.

In a 13-page ruling, Judge Dabney L. Friedrich of the Federal District Court for the District of Columbia expressed doubts about the legality of the policy, which the Centers for Disease Control and Prevention imposed on Aug. 3 in counties where Covid-19 is raging.

The ban replaced an expired, nationwide moratorium first imposed last September to prevent a surge of people crowding into homeless shelters and relatives’ homes, spreading the virus. The new one is narrower because it applies only where transmission rates are high. Still, that category currently covers about 91 percent of counties in the United States.

Judge Friedrich had in May blocked the nationwide version of the moratorium, but the federal appeals court for the District of Columbia Circuit overruled her, and the Supreme Court let that decision stand in June. On Friday, she ruled that the replacement policy was similar enough to the original one that the earlier appeals court ruling controlled the case — for now.

“Absent the D.C. Circuit’s judgment,” she wrote, she would immediately block the government from enforcing the new evictions ban. “But the court’s hands are tied.”

The Justice Department declined to comment. But in a statement, Jen Psaki, the White House press secretary, said: “The administration believes that C.D.C.’s new moratorium is a proper use of its lawful authority to protect the public health. We are pleased that the district court left the moratorium in place, though we are aware that further proceedings in this case are likely.”

The plaintiffs, led by the Alabama Association of Realtors, are expected to swiftly take the case back to the appeals court in an effort to speed its way to the Supreme Court, where five of the nine justices appear likely to agree with Judge Friedrich that the ban exceeds the government’s emergency powers under a broadly worded, but vague, 1944 public health law.

A lawyer for the plaintiffs forwarded a request for comment to Patrick Newton, a spokesman for the National Association of Realtors, which is not a party to the case but supports the landlords. He said the plaintiffs would appeal, adding, “We are confident in our position that this unlawful eviction ban will soon come to an end.”

The government’s power to ban evictions as part of its efforts fighting the pandemic has raised complex legal and political issues. The Biden administration had signaled that it intended to let an earlier version of the moratorium, which had by then already been extended several times, expire at the end of July after a Supreme Court justice warned that it was likely on legally shaky ground.

But as the Delta variant of the virus surged and Speaker Nancy Pelosi and progressive Democrats urged the White House to reverse course, the administration this month issued a new, narrower moratorium — even as Mr. Biden made clear in comments to reporters that he understood its chances of being upheld by the Supreme Court were dim.

“The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster,” he said on Aug. 3. “But there are several key scholars who think that it may — and it’s worth the effort.”

Signaling that the White House understands the moratorium’s longer-term prospects are weak, Ms. Psaki on Friday called on state and local officials to take other steps that could mitigate a virus-spreading wave of mass evictions, including by imposing local moratoriums and by taking more aggressive steps to distribute $46.5 billion that Congress appropriated to serve as emergency rental assistance funds.

A temporary evictions moratorium for the pandemic began during the Trump administration. At times, Congress has explicitly authorized it. But when those periods lapsed, the C.D.C. has issued extensions of it under the 1944 law, which empowers the government to issue rules it deems necessary to slow the interstate spread of disease.

Unable to evict nonpaying tenants, landlords sued, raising the question of whether a nationwide evictions ban fell outside of the 1944 law.

In May, Judge Friedrich ruled that the plaintiffs were likely to prevail and issued an order that would enjoin the government from enforcing the ban while the litigation played out. But she also stayed that ruling while the government appealed it, and the appeals court declined to lift her stay — while also stating that, contrary to her view, the ban would most likely be found lawful.

In late June, the Supreme Court also declined to lift her stay, voting 5-4 against immediately blocking the original evictions ban. But while the government won, the action came with a strong warning: Justice Brett M. Kavanaugh warned that “clear and specific congressional authorization” would be necessary for the moratorium to continue beyond its scheduled expiration at the end of July.

At that point, the pandemic appeared to be waning and the administration thought that tens of billions of dollars appropriated by Congress as emergency rental assistance funds were on the cusp of distribution. Against that backdrop, the Biden administration’s legal and policy teams agreed to allow the moratorium to end as scheduled.

But by late July, conditions had shifted. The distribution of the housing assistance funds proved to be dysfunctional, and coronavirus cases were rising. When swiftly passing new legislation proved politically impossible, House Democrats led by Ms. Pelosi pressured Mr. Biden to act unilaterally after all, at a time when his larger agenda made it perilous to alienate any allies in the closely divided Congress.

That push was complicated by the fact that some Biden policy and press officials had in the interim suggested that the Supreme Court’s action in June made it illegal to extend the moratorium. Those now-awkward comments were an oversimplification of the more complicated reality, according to officials familiar with internal deliberations.

In fact, they advised, the government could stick to its position that it can authorize an evictions moratorium under the 1944 law because the Supreme Court’s action in June was not a definitive, controlling precedent about what that law could be interpreted to mean. They also, however, warned that it was likely that the Supreme Court would swiftly strike down any new moratorium, and such a ruling could also narrow the C.D.C.’s flexibility to act in some future public health crisis.

Three days after the nationwide moratorium expired, the Biden administration issued its narrower evictions moratorium until October.

One legal question raised by the case is whether the new facts — the rise of the Delta variant and the narrowed scope of the ban — make the new moratorium different from the old one in a legally meaningful way, or whether the primary issue is how to interpret the 1944 statute.

In her ruling on Friday, Judge Friedrich determined that the replacement moratorium was fundamentally similar enough to the original one that it counted as an extension of it for which the existing litigation could continue, rather than a new policy for which legal arguments would need to start over.

“The minor differences between the current and previous moratoria do not exempt the former from this court’s order,” she wrote, adding that even though the government “has excluded some counties from the latest moratorium’s reach, the policy remains effective nationwide, shares the same structure and design as its predecessors, provides continuous coverage with them and purports to rest on the same statutory authority.”

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