President Joe Biden quelled a high-stakes confrontation with progressive Democrats with a new moratorium on demolitions during the pandemic, but the order invites a legal fight that the government may easily lose.
The order of the Centers for Disease Control and Prevention in September, following several days of legal wrangling within the Administration, aims to keep tenants who are in arrears from losing their homes until Oct. 3. White House officials hope that there's enough time to effectively put up a long-delayed $47 billion rental assistance program.
The ban came after Biden's White House failed to anticipate outrage and finger-pointing from its own party after he called for Congress to extend a previous moratorium that was scheduled to expire just two days later. Lawmakers in the House, under lobbying by landlords, failed to act before leaving town for the rest of the summer.
The drama illustrated the White House's struggle to contain a resurgence of the pandemic fueled by the delta variant of coronavirus, which has the U.S. again testing tens of thousands of infections per day and record hospital capacity in under-vaccinated states, particularly in the politically conservative South. On Tuesday, Biden showed his frustration, chastising Republican governors for making mask mandates illegal in seven states, including in schools.
Biden warned at the White House that the current eviction moratorium 'is likely to face obstacles, given indications by a majority of Supreme Court justices that further bans would require congressional action. He said his administration is urging states and local governments to more quickly distribute federal aid for landlords allowed months after which have suffered bureaucratic delays.
The president said he had consulted constitutional scholars on executive and agency action on a new eviction moratorium, asking them, 'What would they do?
'The bulk of the constitutional scholarship says it's not likely to pass constitutional muster, number one, he said. 'But there are several key scholars who say that it is worth the effort and it may or may not.
Those comments provoked at least one progressive New York Representative Mondaire Jones, who predicted lawyers for landlords would cite Biden in their court challenges against the new moratorium.
It is odd to raise issues about the constitutionality of executive actions right before making that executive action, I think. 'That is not the behavior, that is not the commentary of someone trying to help people. And it's really frustrating to hear such a language from President Trump.
But in its statement accompanying the latest moratorium, the CDC tried to ground the ban on topics of public health, not politics. Evictions were prohibited in areas of the country with high or substantial transmission of coronavirus, the agency said, noting the country's slowed pace of vaccinations and difficulties getting the rental assistance program operational.
'The emergence of the delta variant has led to a rapid acceleration of community transmission in the United States, putting more Americans at increased risk, especially if they are not asvaccinated, CDC Director Rochelle Walensky said in a statement. 'This moratorium is the right thing to do to keep people out of congregate spaces where COVID-19 spreads.
The order would cover about 80% of U.S. counties and 90% of renters, a person familiar with the matter said.
Attorney General Merrick Garland, said Thursday that the Justice Department will 'vigorously' defend the renewed eviction moratorium and will also work with state courts leaders to find 'diversion strategies' to keep people in their homes. He said the potential eviction of millions of tenants could exacerbate the nation's ongoing health crisis.
Among the worries he made to the Police Department was that evictions would lead to more risky encounters between homeless and police employees.
If a legal challenge gets to the Supreme Court before the eviction ban expires, the administration risks conservative justices using the case as an opportunity to curtail broad powers the CDC has exercised during the pandemic, said Lindsay Wiley, Director of the Health Law and Policy Program at the American University Washington College of Law.
The court declined to issue a stay on the previous moratorium of the CDC in June but by a broad majority 5 - 4 for the motions. The deciding justice, Brett Kavanaugh, said in an opinion that he believed the CDC's action was unconstitutional and that he would not support an extension beyond July 31 unless it was approved by Congress.
The CDC has used its authority in the pandemic to require Americans to wear masks on public transit and airplanes and to regulate the activity of cruise ships, in addition to suspending evictions.
'The court could issue a decision that could adopt a very far-right constitutional interpretation that could create vulnerability for environmental and financial regulations. There is a spectrum of consequences, Wiley said. 'The White House is right to not hesitate in pressing this issue.
Senator Pat Toomey, a Pennsylvania Republican, said Tuesday evening on Twitter that the new moratorium lacks both a legal basis and an economic justification', and that the White House should have focused on 'dealing with its failure to get renters money rather than papering over its failures with illegal actions.
But political concerns - including the growing anger of fellow Democrats - and the potential evictions of millions of Americans ended up trumping the White House's legal concerns. Already furious by the White House's perceived lack of action on voting rights and climate change, progressive activists grew more angry about the lapsed of the eviction moratorium.
The White House didn't call on Congress to try to extend the moratorium until two days before it was set to expire, even though aides had weeks to prepare. Congressional leaders called them on it, leading to a rare blame game between top House Democrats and the Biden White House.
The executive director of the ActionOn.org group, Rahna Epting, said pressure from progressive lawmakers had forced Biden administration to act on a new moratorium. She cited Representative Cori Bush of Missouri, who slept on the steps of the Capitol for several nights starting Friday to protest the expiration of the previous ban.
She showed us the urgency and the substance of this and how it will affect millions of people. This could have gone quietly into the night if she had not protested and organized Epting said of Bush, who once was homeless.
The White House spent days trying to explain the legal logic behind an initial CDC decision that it couldn't issue another extension and dispatched top officials, including Vice President Janet Yellen and Treasury Secretary Kamala Harris, to answer lawmakers' questions.
Earlier Tuesday, Yellen faced multiple anger from House Democrats, who demanded immediate action from the administration to extend the ban on evictions, according to house members who participated in the call.
Yellen stressed that the administration was focused on getting states and localities to more quickly distribute the rental assistance Congress has already approved.
Anthony Michael Kris, an assistant professor of constitutional law at Georgia State University, said that if Kavanaugh and the conservatives wind up striking down the new moratorium, Biden could profit from it.
'We can place the blame on the Supreme Court and say, 'you know, we tried everything we could, Republicans and the Supreme Court just could not let this happen, he said. I think that's a lot better position politically, in terms of strategizing, than sit on your hands and do nothing.