A federal appeals court in Washington, D.C., on Friday left the Biden administration's latest eviction moratorium in place, teeing up an emergency appeal to the Supreme Court.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit denied a request from a group of landlords who say the Centers for Disease Control exceeded its legal authority in issuing the eviction ban. The moratorium costs $19 billion per month, lawyers for the landlords told the appeals court in legal filings.
The Supreme Court allowed a prior iteration of the eviction ban to remain in place on June 29. Four justices noted their dissent from the order. A fifth, Justice Brett Kavanaugh, said he would not vote to authorize an extension of the moratorium past July 31 absent explicit congressional authorization.
The Biden administration's dithering response to that decision put Friday's case on unusual footing. President Joe Biden said on Aug. 3 that an extended moratorium was unlikely to survive another legal challenge. Senior administration officials made similar statements.
Their conclusion drew fierce criticism from congressional Democrats who support the moratorium, and the CDC ultimately extended the moratorium despite the president's admission. The landlord plaintiffs in the June case immediately renewed their legal challenge, using the president's own words against administration lawyers in court filings.
Some legal experts and court watchers believed the administration was reading too much into the June decision. The Court's order did not address the legal merits of the eviction moratorium but instead turned on other legal factors. Only one member of the Court, Kavanaugh, handed down an opinion, which was one paragraph in length. And the dispute was processed on the Court's emergency docket, via abbreviated legal filings and without oral argument. Given those facts, some argued the president acted prematurely.
The administration's vacillating response made an inviting target for lawyers who challenged the moratorium. In legal papers, they highlighted Biden's comments and accused the administration of buckling to political pressure from congressional Democrats.
"It reversed course three days later not because of an unexpected public-health emergency, but because the political pressure on the White House evidently became too much to bear," lawyers for the landlords told the D.C. Circuit.
Though White House press secretary Jen Psaki cast the latest eviction ban as a "narrow, targeted" measure in an Aug. 3 briefing, the moratorium is almost identical to its predecessor. The exceptions, criminal penalties, and legal justifications invoked for both moratoria are the same. And the latest ban, purportedly limited because it covers jurisdictions with high COVID transmission, applies to 90 percent of U.S. counties.
The CDC says it has authority to issue the moratorium under a provision of the Public Health Act that empowers the agency to take steps "to prevent the introduction, transmission, or spread of communicable diseases" among the states. The agency says a surge of evictions is likely to crowd streets and shelters, which will increase coronavirus transmission.
The landlords fault the agency for treating the Public Health Act provision as a near-unlimited grant of power. They also argue that the states take the lead on housing issues, not the federal government, so the CDC needs to identify some clear statement that shows Congress has authorized "such a dramatic intrusion into this area."
The legal dispute surrounding the extended moratorium involves how the lower courts should react to the Supreme Court's June ruling. A federal trial judge in Washington, D.C., said the moratorium is on dubious legal footing but cautioned that "the votes of dissenting justices may not be combined with that of a concurring justice to create binding law." Friday's order from the D.C. Circuit affirms that conclusion.
Judges Nina Pillard, Neomi Rao, and Ketanji Brown Jackson are on the panel. The case is No. 21-5093 Alabama Association of Realtors v. U.S. Department of Health and Human Services.