It was July 29, and the rent was coming due for tenants all over the country. That is, until it wasn’t. Pressed by the progressive wing of the Democratic Party, the Biden White House turned to the CDC to extend the eviction moratorium to October 3 of this year.
The White House maintains that this is not an extension of existing nationwide policy but a new, “targeted” moratorium. Housing groups aren’t buying it, irate with what they see as government overreach and a rebranding of the same policies that saw many landlords go months without collecting enough rent to break even on managed properties. One of those groups, the Alabama Association of Realtors, is challenging the order in court.
The CDC’s latest program, instead of being a blanket nationwide moratorium, uses a region’s COVID-19 infection status as the deciding factor for whether it qualifies. With this adjustment, the administration is attempting to disconnect the “new” moratorium from the past one, which came under intense legal scrutiny.
The former moratorium survived until July 31 only because Justice Kavanaugh thought a premature death for the policy would not “allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds.” He wrote that the only way a moratorium could pass muster thereafter was if there were “clear and specific congressional authorization (via new legislation).”
Pundits and activists on the right and left have predicted the Biden administration may find it exceedingly difficult to argue this moratorium’s new and unique aspects relative to the last.
According to Luke Wake of the Pacific Legal Foundation, defenders of the most recent moratorium “are relying on the very same flawed statutory authority that they have since pronouncing the eviction moratorium last September. The only difference being that instead of a blanket, nationwide moratorium, they would only cover 90 percent of the country. But because they rely on the same supposed authority, their actions are still unlawful.” All Our Opinion in Your Inbox
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Individuals familiar with the plaintiffs’ strategy agreed with Wake, telling National Review that there’s little in the new order to meaningfully differentiate it from its predecessor. The sources pointed out that the new order retains the five eligibility requirements included in the initial moratorium, adding just the one, COVID-dependent, additional requirement.
Legal reaction to the CDC’s pronouncement is moving swiftly, explained Wake:
Now that the Government has renewed the moratorium order in apparent defiance of Kavanaugh’s warning, the Alabama Realtors have sought again to lift the stay in their case so that landlords can begin evicting. The Government was ordered [by the DC Circuit] to respond by the end of [Friday] to that emergency petition. If it’s granted, then that’s a big deal for landlords. If it’s denied, then we can assume they will immediately appeal to the DC Circuit and might very well be before the Supreme Court again quickly.
Kavanaugh granted grace to the CDC, stipulating any extensions would require legislative action. By circumventing him now, the Biden White House risks the Supreme Court’s wrath. Sources were confident that the CDC would not find Kavanaugh nearly as deferential to the government attorneys should they find themselves before him in court again.
Those familiar with the suit expect that sometime early this week, perhaps even Monday, D.C. District Court judge Dabney Friedrich will make a ruling, with a high probability that it lands in favor of the Alabama Realtors. It would then be on the government to appeal the case to higher courts.
Monday, August 9, had both sides’ attorneys before Judge Friedrich answering her questions and pleading their cases. She chose not to rule immediately, instead taking the case under consideration.
Wake estimated the Fifth Circuit would get to his firm’s case (Chambless) around October. A delay, but he figures the CDC will extend the rent moratorium during the winter months, meaning Chambless may be before the Supreme Court by year’s end.