On Tuesday, President Joe Biden announced a new policy that even he appears to believe will be struck down by the Supreme Court.
Biden spoke at a press conference Tuesday afternoon shortly before the Centers for Disease Control and Prevention issued a new order imposing a moratorium on certain evictions. The CDC’s new order is substantially similar to a previous eviction moratorium that expired at the end of July, but with one exception.
Both the old moratorium and the new one apply to people who are experiencing financial hardship and unable to pay their rent, and both orders are intended to prevent people from losing their homes and becoming more likely to spread Covid-19 as a result. But the new order only applies to individuals who live in a county “experiencing substantial or high rates of community transmission levels” of Covid-19.
It’s a risky move. Although the Supreme Court rejected a request to halt the previous version of the eviction moratorium last June, four justices voted to grant this request immediately. And a fifth, Justice Brett Kavanaugh, indicated that he would strike down any attempt to extend the moratorium past July 31, unless Congress passed new legislation permitting such a moratorium.
The CDC’s new order, in other words, is likely to run into a judicial buzz saw. And, at his Tuesday press conference, Biden didn’t hide this reality.
Biden revealed that he’s “sought out constitutional scholars” to advise him on how to craft a new eviction moratorium that is “most likely to pass muster” in the courts, but the majority view among scholars, he said, is that any new moratorium pushed out by the CDC is likely to be doomed. The Justice Department’s lawyers will now face the thankless task of defending the CDC’s new order in court, after the sitting president suggested that this order is unlikely to survive contact with the judiciary.
But Biden also revealed why he’s willing to risk the ire of a conservative judiciary that’s eager to diminish his ability to govern. The eviction moratorium is not supposed to exist in a vacuum. Congress appropriated $45 billion in rent relief that was supposed to help tenants who are struggling financially due to Covid-19. In theory, the moratorium was extended to to keep these people from being evicted until they received relief checks that would allow them to pay the rent — rescuing renters and landlords in the process.
In practice, however, identifying the specific individuals who should receive rent relief is a logistical nightmare. Many states have enacted onerous documentation requirements that can be difficult for struggling renters to meet. For the most part, the state and local governments tasked with distributing these funds don’t know who they should be targeting for aid, because they don’t know who owns rental properties and who lives in them. And they often don’t have the staff to process relief requests quickly. As a result, only about 6.5 percent of the $45 billion has actually been paid out, as of the end of June.
And so, Biden conceded in his Tuesday press conference that the courts very well may strike down the new CDC order. But he’s praying they won’t do so quickly. “By the time [the new moratorium] gets litigated,” Biden said, “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.”
It’s a dangerous play that could easily end in a vindictive Supreme Court stripping away even more of the federal government’s authority to fight pandemics. As a general rule, it’s a bad idea to take a particular action after five justices have already signaled that they think that action is illegal.
But Biden appears to be betting that there’s enough humanity left in an increasingly right-wing judiciary that they will give him more time to save people’s homes.
How we got to this point
Biden faced both a political problem and a legal problem after the CDC’s previous moratorium expired at the end of July.
The political problem is that Congress does not appear to have the votes to pass a new moratorium, as Kavanaugh said it must. Yet key members of Congress, including Speaker Nancy Pelosi, blamed the Biden administration for allowing the eviction moratorium to expire — even after the Supreme Court warned the administration not to extend it.
“Action is needed, and it must come from the Administration,” Pelosi and her fellow Democratic House leaders said in a statement released on Sunday. “That is why House leadership is calling on the Administration to immediately extend the moratorium.”
Meanwhile, Rep. Cori Bush (D-MO) held a three-day long vigil on the Capitol steps, literally sleeping outside in the rain, in order to pressure Congress and the administration into extending the moratorium.
Yet, amid all of this pressure, the Biden administration correctly recognized that it had an even tougher legal problem: A new CDC order was unlikely to survive contact with the Supreme Court. “President Biden would have strongly supported a decision by the CDC to further extend this eviction moratorium to protect renters at this moment of heightened vulnerability,” the White House said in a statement last Thursday, but “unfortunately, the Supreme Court has made clear that this option is no longer available.”
Although the new moratorium differs from the old one in that it only applies in areas with a substantial amount of Covid-19 spread, that distinction is unlikely to convince any of the five justices who believe that the earlier version of the moratorium is illegal. Kavanaugh, least conservative among those five justices, wrote that “the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium,” and he added that “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”
One extra challenge facing Biden is that he doesn’t just have to convince the Supreme Court to stay its hand for a little while longer. He also has to worry about the lower courts. Landlords and other parties opposing the moratorium brought a raft of lawsuits challenging the CDC’s previous order, and at least some of these cases were heard by Trump judges who embraced truly bizarre legal attacks on the moratorium.
If a landlord brings a challenge to the new CDC order, and if this case is heard by a similarly ideological federal judge, that judge could issue a nationwide order suspending the moratorium. Indeed, a sufficiently aggressive judge might do so as soon as today.
Assuming that no judge issues such a nationwide order (or that any order blocking the moratorium is stayed by a higher court), there is some reason to hope that the Supreme Court may sit on its hands before it issues an order blocking the new CDC order. (The Court might also uphold the new order, although that outcome is very unlikely.)
In Alabama Association of Realtors v. HHS, the challenge to the previous CDC order that reached the Supreme Court, the plaintiffs initially asked the justices to block the eviction moratorium on June 3. But the Supreme Court did not resolve the case until June 29. Maybe the Court will delay a similar ruling when it’s faced with a new challenge to the new CDC order.
Kavanaugh’s opinion in Alabama Association of Realtors, also suggests that he may have some sympathy for tenants who are waiting for the government to process their rent relief money. Though his opinion was brief, he said that he’d allow the moratorium to continue until the end of July “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.”
That said, the Court’s conservative majority tends to be hostile toward federal agencies that impose obligations on businesses — including landlords. And that majority has already shrunk much of the government’s power to fight the pandemic, such as by granting expansive exemptions to churches and other places of worship that object to public health orders.
The biggest risk arising from the new CDC order, in other words, is that the Court could lash out at Biden for taking an action that the president knew was unlikely to survive contact with the judiciary — and that the justices might punish the president by diminishing his ability to control Covid-19 even more than they already have.
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