A federal judge is considering whether to block the Biden administration’s new near-nationwide ban on evictions.
The Centers for Disease Control and Prevention (CDC), prodded by President Joe Biden, on Aug. 3 banned evictions for two months across about four in five U.S. counties. The eviction moratorium came approximately three days after the previous order expired.
U.S. District Judge Dabney Friedrich, a Trump nominee, heard arguments from the government and from a lawyer representing a group of landlords and other real estate owners on Aug. 9. Arguments centered on a Supreme Court ruling in June that was presented differently by each side.
Plaintiffs are focusing on what Justice Brett Kavanaugh, a Trump nominee who served as the swing vote, said in his concurring opinion.
Kavanaugh chose to side with four justices in not blocking enforcement of the previous ban. But he wrote in his opinion that “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”
“It’s clear that a majority of the Supreme Court would not support extending the moratorium past July 31,” Brett Shumate, a lawyer representing the plaintiffs, told the court.
Brian Netter, a government lawyer, disagreed.
“We believe that this is proper use of a lawful authority to protect the public health and the Supreme Court has not ruled otherwise,” he said, referring to the new extension.
The prior order was nationwide while the new order leaves out about 20 percent of counties, or 10 percent of the population. But it relies on the same claim to legal authority and, for most purposes, is the same order, Netter acknowledged.
Plaintiffs sought to sway the judge in quoting from Biden and White House officials who, in the wake of the Supreme Court ruling, indicated that they were constrained by it.
Gene Sperling, a senior Biden adviser, for instance, told reporters on Aug. 2 that the president had “double, triple, quadruple checked” on whether the executive branch could extend the earlier order or implement a new, tailored one.
Both White House and CDC lawyers “have been unable to find the legal authority,” he said.
White House press secretary Jen Psaki, after the new order was announced, said the key part of Sperling’s quote was “at this time.” The authority was later discovered, she claimed.
CDC Director Dr. Rochelle Walensky said in the order that the emergency action was taken under authority provided by 42 CFR 70.2, which enables the CDC’s director to take measures to prevent the spread of diseases.
But Shumate pointed to remarks from Biden offered on the same day the order was released.
“The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster,” Biden had said in Washington.
He said multiple times that the order could be struck down by courts but would offer more rent relief until it was.
“At a minimum, by the time it gets litigated, it will probably give some additional time while we’re getting that $45 billion out to people who are, in fact, behind in the rent and don’t have the money,” Biden said.
Shumate argued that “the Executive Branch has already conceded CDC did not have the legal authority to extend the moratorium, and they have conceded they have issued the fourth extension for improper purposes to shift the blame to the courts and to buy more time through litigation delay to extend the moratorium and keep this unlawful policy in place. Under these circumstances, the court should immediately vacate the fourth extension in the stay pending appeal.”
Netter defended the earlier remarks from Biden and others.
“The position of the executive branch across now two presidential administrations has been entirely consistent which is, Section 361 A of the Public Health Service Act does confer the authority to CDC to provide an eviction moratorium. The executive branch continues to stand behind that presentation 100 percent. And that’s why we’re here today,” he said.
At the same time, “there may be some doubts as to whether or not the Judicial Branch will agree with the Executive Branch, because there are still open questions.”
Friedrich said she would make a decision on the motion to block the new order in the near future.