Eviction Ban Survives Landlords’ Challenge in Win for Biden

(Bloomberg) -- A temporary U.S. ban on evictions in parts of the country hit hardest by the pandemic can continue, a federal judge in Washington ruled, in a victory for the Biden administration’s efforts against the spread of the coronavirus.

In a ruling on Friday, U.S. District Judge Dabney Friedrich rejected a plea by landlord groups to block a moratorium established by the Centers for Disease Control and Prevention, even as she voiced concerns over the legality of the policy. The decision means the ban, set to last until Oct. 3, can stay in place for now, though it’s likely to face further challenges.

Friedrich wrote that she was forced to keep the moratorium in place because of a ruling by the U.S. appeals court in Washington that allowed a previous nationwide version of the policy to stand. 

“The court’s hands are tied,” she wrote.

Intense Fight

The ruling marks the latest twist in a months-long legal saga over how far the government can go to protect renters from losing their homes because of Covid-19, which has disrupted the economy, cost millions of people their jobs and left many property owners with billions of dollars in lost rental income.

Earlier this year Friedrich blocked the nationwide version of the eviction ban, ruling that it exceeded the government’s authority. But the appeals court in Washington put that order on hold, finding that the CDC’s moratorium would likely withstand further scrutiny. 

In June, the Supreme Court ruled 5 to 4 that the eviction ban, begun under Republican president Donald Trump, could continue until its expiration date at the end of July. But Justice Brett Kavanaugh, who cast the pivotal vote, said any extension would require legislative action. Congress failed to act, and the earlier ban expired. 

The new, Democratic administration of Joe Biden initially expressed reluctance to continue the moratorium, given the likelihood that it would be overturned in the courts. That view drew widespread criticism from Democrats who argued the ban was needed to protect renters as Covid cases started rising again. Representative Cori Bush of Missouri camped outside the Capitol in a sleeping bag to protest the lapse of the moratorium, as renter advocacy groups lobbied the administration to act.

Read More: Why a Historic Eviction Wave Still Looms Over U.S.

The White House applauded Friday’s ruling.

“Throughout the pandemic, preventing evictions and keeping people in their homes has been a proven way of slowing the spread of Covid-19,” Press Secretary Jen Psaki said in a statement. “The administration believes that CDC’s new moratorium is a proper use of its lawful authority to protect the public health.”

Lawyers for the landlord groups that challenged the ban, the Alabama Association of Realtors and the Georgia Association of Realtors, didn’t immediately respond to an email seeking comment on the ruling.

On Aug. 3 the CDC issued a new, limited version of the ban that applied only to U.S. counties where the spread of the virus is most severe. The agency said it wanted to buy more time to increase vaccination rates and allow local governments to distribute funds to people who have fallen behind on rent. Congress has granted almost $47 billion in emergency rental assistance, but bureaucratic delays have kept some of that aid from reaching those in need.

A day after the CDC announced the new ban, the landlord groups challenged it in court in Washington, seizing on Kavanaugh’s argument in the Supreme Court case.

“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 lawsuit.

The Kavanaugh Factor

Kavanaugh wrote in June that he voted to let the moratorium stand only because it was about to expire. In a brief concurring opinion, he said only Congress had the authority to extend it. The landlord groups argued that by adding Kavanaugh to the four justices who voted against the ban, Friedrich could conclude that the Supreme Court would block the new version of the moratorium. 

Friedrich rejected that logic. While Kavanaugh’s comment suggests the CDC is likely to see the ban overturned eventually, she said in her ruling, “the Supreme Court did not issue a controlling opinion in this case.” 

“Circuit precedent provides that the votes of dissenting justices may not be combined with that of a concurring justice to create binding law,” she wrote. She said the appeals court’s ruling on the nationwide ban was the most authoritative legal guide available.

Landlord groups are certain to continue fighting the moratorium, in a battle that will likely return to the high court. The pandemic has been costly for them: About 5.6 million renters, or 13% of the U.S. total, were behind on payments in June, according to Moody’s Analytics estimates. Tenants owed about $24 billion, Moody’s reported, down from a peak of $52.6 billion in January.

While the federal moratorium covers about 90% of U.S. renters, some of the most populous cities and states have passed their own rules to prevent landlords from evicting tenants during the pandemic.

©2021 Bloomberg L.P.