Justice Department defends new evictions moratorium in court over landlord challenge

The Justice Department defended the Centers for Disease Control and Prevention’s revised evictions moratorium this week, telling a federal court that the highly infectious delta variant of COVID-19 warrants longer protection for renters unable to pay their landlords.

President Biden and Congress allowed the eviction moratorium to lapse last weekend, but the administration, under intense pressure from the Democratic left, has since moved unilaterally to renew it in order to prevent millions of tenants from being evicted.Unlike the prior blanket ban on evictions, this one applies only to “areas of high concern” regarding the spread of COVID.

The Supreme Court refused to block the moratorium in June, noting it would lapse at the end of July. Justice Brett M. Kavanaugh, though, warned another extension would need to come from Congress, not the executive branch.

“The trajectory of the pandemic has changed dramatically as a result of the highly contagious delta variant. The seven-day average of daily new cases is now 89,976 — nearly a sevenfold increase over the rate when the Supreme Court ruled on June 29,” the Justice Department said in its court filing. “New evidence suggests that the delta variant is more than twice as transmissible as the original strains.”

The CDC’s move after the original moratorium lapsed last month has prompted frustrated landlords to go back to district court in a new filing this week, arguing the high court’s order from June should be enforced — and urging the judge to block the newest moratorium.

The landlords said Congress failed to pass legislation supporting a new ban on evictions, so a pressure campaign from some lawmakers came down on the CDC, which “caved to political pressure.” Even President Biden has expressed ambivalence about whether the administration’s action would pass legal muster.

“This court should immediately vacate the CDC’s fourth extension because it conflicts with the Supreme Court’s ruling. A majority of the Supreme Court made clear that the eviction moratorium exceeds the CDC’s authority and could not be extended beyond July 31,” the landlords argued.

The case is pending before Judge Dabney L. Friedrich, a Trump appointee.

In June, the Supreme Court voted 5-4 to leave the eviction moratorium in place. But Justice Kavanaugh, though he voted with the majority leaving the moratorium intact until July 31, said he thought the government had reached too far.

He said he did not move to strike down the moratorium immediately because “those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds.”

Justice Amy Coney Barrett, Justice Neil M. Gorsuch, Justice Samuel A. Alito Jr. and Justice Clarence Thomas would have voted to strike down the ban on evictions immediately. 

The Centers for Disease Control and Prevention has extended the eviction moratorium four times since last year when the pandemic hit.
It prevents landlords from evicting tenants while the order is enforced, even if the tenant can’t pay rent.

The moratorium was first issued in September under former President Trump, but the government has continued to renew it during the following months, even after coronavirus vaccines have been widely distributed and other parts of the economy have begun to recover.

Property owners across the country, including struggling mom-and-pop operators, have been asking the nation’s courts why landlords are expected to take a financial hit while non-paying tenants are protected by eviction moratoriums.