After two federal courts deemed the nationwide eviction pause unlawful, and the Supreme Court indicated that only Congress could extend the ban or put into place a new one, the eviction ban expired on July 31, and no moratorium was in place.
President Joe Biden and officials within his administration said they were constrained by the court rulings, but abruptly changed course on Aug. 3, imposing a new two-month eviction moratorium in 80 percent of U.S. counties.
Landlords and other real estate owners quickly asked a court to block the new eviction ban, arguing to U.S. District Judge Dabney Friedrich that the executive branch was exceeding its authority.
“In substance and effect, the CDC’s latest action is an extension of the same unlawful ban on evictions that has been in effect since September 2020,” they said.
In their Aug. 6 counter-filing, Department of Justice (DOJ) lawyers argued that the new pause isn’t the same because it doesn’t apply to the entire country.
The DOJ attornies said that circumstances have changed since the courts ruled against the previous ban.
“The trajectory of the pandemic has changed dramatically as a result of the highly contagious Delta variant,” they said.
The lawyers also noted that the recent Supreme Court ruling left the prior ban in place, even though Justice Brett Kavanaugh, a Trump appointee, said he believed the Centers for Disease Control and Prevention (CDC) had overstepped its authority by enacting the initial moratorium.
“I agree with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium,” Kavanaugh wrote in a concurring opinion.
“Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application to vacate the District Court’s stay of its order.”
The other four justices who voted to keep the ban in place didn’t explain their votes, nor did the four justices who voted to strike down the ban.
“Unless and until the Supreme Court rules otherwise, the decision of the D.C. Circuit motions panel that rejected Plaintiffs’ position remains the law of the case, at least as to the factors governing whether any adverse judgment should be stayed,” DOJ lawyers said in their filing.
If Friedrich, a Trump appointee, disagrees and rules against the new eviction ban, then she should stay her ruling so the defendants can quickly appeal to the U.S. Court of Appeals for the D.C. Circuit or the Supreme Court, the lawyers wrote.
That strategy was outlined by Biden, who told reporters on Aug. 5 that he remained unsure if the new ban was legal.
“I can’t guarantee you the Court won’t rule [that] we don’t have that authority, but at least we’ll have the ability, if we have to appeal, to keep this going for a month at least—I hope longer than that,” Biden said outside of the White House.