A federal judge announced on Aug. 13 that she won’t immediately block the Biden administration’s latest pause on evictions.
The pause is an extension on the previous moratorium, which Supreme Court Justice Brett Kavanaugh deemed an overreach, U.S. District Judge Dabney Friedrich, a Trump appointee, said in her 13-page ruling.
That view of the ban enables the judge to block it, but Friedrich said she’s prevented from doing so by previous orders from other courts, including the nation’s highest court.
Friedrich in May vacated the Centers for Disease Control and Prevention’s (CDC) eviction pause, finding that the CDC lacked the legal authority to impose a nationwide moratorium. But she quickly stayed the order on the request of the government, pending appeal.
The U.S. Court of Appeals for the District of Columbia Circuit the following month upheld the stay, asserting that the Department of Health and Human Services, which includes the CDC, was likely to succeed when the case was ultimately decided.
The Supreme Court followed by refusing to overturn the ban in place at the time, in a narrow 5–4 decision in which Kavanaugh was the only justice to offer his thoughts regarding how he voted.
Kavanaugh decided to uphold the ban, but said in his concurring opinion that the CDC “exceeded its existing statutory authority by issuing a nationwide eviction moratorium,” and Congress would have to act when the ban expired.
The CDC’s nationwide eviction pause expired on July 31. The agency soon issued a new moratorium, which applies to around 90 percent of the U.S. population, after Congress failed to pass an eviction pause.
Combined with the four justices who would have vacated the stay, Kavanaugh’s opinion was enough to establish that the Supreme Court would rule against any future CDC action on evictions, the plaintiffs—including real estate groups—argued in their emergency motion on Aug. 4 and in court earlier this week.
Friedrich sided with the government defendants in disagreeing.
“Because the four dissenting Justices did not explain their votes, it is impossible to determine which proposed disposition—theirs or Justice Kavanaugh’s—is the ‘common denominator’ of the other,” she wrote.
While several other courts have cast doubt on the CDC’s authority to ban evictions, the Circuit Court’s upholding of the stay, taken with the Supreme Court’s decision not to end the ban, means the judge’s hands are tied, she added.
“These intervening decisions call into question the D.C. Circuit’s conclusion that the CDC is likely to succeed on the merits. For that reason, absent the D.C. Circuit’s judgment, this Court would vacate the stay. But the Court’s hands are tied. The Supreme Court did not issue a controlling opinion in this case, and circuit precedent provides that the votes of dissenting Justices may not be combined with that of a concurring Justice to create binding law,” she stated.
To lift the stay, plaintiffs must seek relief from the D.C. Circuit, she concluded.
The National Association of Realtors, which is one of the plaintiffs, told The Epoch Times in an email that plaintiffs are planning an appeal to the D.C. Circuit Court and, if necessary, the Supreme Court.
“We are confident in our position that this unlawful eviction ban will soon come to an end. Federal and state governments should be focusing all energy on the swift distribution of nearly $50 billion in rental assistance available for struggling tenants,” a spokesperson said via email.
White House press secretary Jen Psaki said the administration “believes that CDC’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,” she said in a statement.