Biden's new evictions moratorium faces doubts on legality

WASHINGTON (AP) - President Joe Biden may have averted a spate of evictions and resolved a growing political problem when his administration reinstated a temporary ban on evictions over the COVID-19 crisis. But he left his lawyers with legal arguments that even he admits would not stand up in court.
The new eviction moratorium announced on Tuesday by the Centers for Disease Control and Prevention could face opposition from the Supreme Court, where a judge warned the government in late June not to act without the express consent of Congress.
Alabama landlords, whose offer to lift the previous eviction break had failed, returned to federal court in Washington late Wednesday asking for an order that would allow the evictions to resume.
The administration expects differences between the new order, which is due to last until October 3, and the eviction break, which has passed over the weekend to strengthen their legal battle. At least, as Biden himself said, the new moratorium will buy some time to protect the estimated 3.6 million Americans threatened with evictions from their homes.
Some jurists who question the new eviction ban will say that its legal basis is strikingly similar to the old one.
"Meet the new moratorium, just like the old moratorium!" Ilya Somin, a law professor at George Mason University who supported Biden with former President Donald Trump last year, wrote on Reason.com.
Nicholas Bagley, a law professor at the University of Michigan, said he expected landlords to “go to the courts immediately across the country for an injunction,” an order that would effectively allow evictions to resume.
The fundamental legal question is whether the CDC has the authority to suspend evictions under existing federal law of 1944 amid a public health crisis.
US District Judge Dabney Friedrich ruled in May that the CDC had exceeded its powers under the law, a decision Bagley described as "measured and reasonable." But Friedrich kept her decision in favor of Alabama landlords on hold pending appeal.
In June, the Supreme Court voted 5-4 to keep the moratorium in place until the end of July, despite a majority judge, Brett Kavanaugh, who wrote that he believed the CDC had no authority to order it. A further extension of the moratorium, wrote Kavanaugh, is only possible with "clear and specific approval from Congress (via new laws)".
In the landlords' new court record, attorney Brett Shumate wrote that "the CDC has given in to political pressure by extending the moratorium without providing a legal basis." The administration has until early Friday to respond.
Congress did not act. Neither the House of Representatives nor the Senate had the votes for a temporary extension, and spokeswoman Nancy Pelosi did not even hint on Tuesday that she would attempt to get legislation through the house.
“Today is a day of extraordinary relief. Thanks to the leadership of President Biden, countless families across America have faced the threat of displacement and fear. Help is here! ”Pelosi said in a statement.
Biden has been told that a new nationwide moratorium, like the one that has just expired, is likely to be blocked by the courts, according to a senior White House official who spoke on condition of anonymity.
But the government moved on without Congress interfering after officials worked out a plan with enough changes to make it, they hope, less prone to judicial challenges.
White House press secretary Jen Psaki insisted on Wednesday that Biden, who has a law degree, would not have endorsed this if he was uncomfortable with the legal position or approach, despite the doubts he had one day had previously expressed publicly.
“This is a tight, targeted moratorium that is different from the national moratorium. It's not an extension of it, ”said Psaki.
Pelosi helped recruit Harvard emeritus professor Laurence Tribe to work on a solution and convince the White House that a closer moratorium could exist in court, according to a person granted anonymity to private conversations discuss.
The new regulation will only protect renters in parts of the country where there is significant COVID-19 transmission, although in practice it will initially cover areas where 90% of the US population live. The evictions can be resumed as soon as the new infections have receded permanently.
The differences are significant, said some legal scholars.
"This ties the moratorium very directly to COVID-19 control," said Emily Benfer, a law professor from Wake Forest who studies health and housing. With all the information that is now known about the new Delta variant, "the war against COVID has changed" since the question of the moratorium was last before the Supreme Court, she said.
Brianne Gorod of the liberal Constitutional Accountability Center also warned against reading too much in Kavanaugh's comment on the late June moratorium.
The courts will “consider how the proliferation of the delta variant and its significant portability will demonstrate the need for this more targeted moratorium,” Gorod said.
The 6th US Court of Appeals, which includes Tennessee, Kentucky, Michigan and Ohio, ruled in a separate lawsuit in late July that the CDC was not empowered to impose eviction breaks. And the CDC regulation itself says that it does not apply "to the extent that its use is prohibited by a federal court order".
As a result, Tennessee state court system spokeswoman Barbara Peck said Wednesday that lawyers for courts in her state "advised this is not applicable in Tennessee."
Two major Ohio court systems on Thursday made conflicting decisions regarding the new moratorium. In Franklin County, home of the state capital, Columbus, county administrative judge Ted Barrows said the moratorium would not be enforced due to the 6th county's decision last month.
But Cuyahoga County, home of Cleveland, is enforcing the new moratorium, according to a layoff from the office of housing judge Mona Scott who found the county has the second highest coronavirus transmission rate in Ohio.
Some housing advocates said the new system was complicated but would prevent some evictions. Your customers were grateful for the delay.
Antoinette Eleby, 42, of Miami, said she was concerned as she expected an eviction order within two to three weeks after she said her landlord refused to use federal rental assistance twice. She had sent five out of nine children to live with their mother in another district.
But after hearing about the new CDC regulation, Eleby said she was confident the extra time would convince her landlord to accept the federal funds and she could stay home. Her attorney told her the order means that she cannot be evicted by the sheriff's officials.
“Now that this has happened, I'm kind of comfortable. I'm just seeing what the next steps are. I just have to keep hoping for the best, ”said Eleby, who was unable to work for part of the pandemic after her family contracted COVID-19.
___
Contributors to this report were Lisa Mascaro, Darlene Superville in Washington, Michael Casey in Boston, Jonathan Mattise in Nashville, Tennessee, and Andrew Welsh-Huggins in Columbus, Ohio.
In this article:
Joe Biden
46th and current President of the United States
Brett Kavanaugh
Associate Justice of the United States Supreme Court

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