The first big problem with President Biden’s resurrection of the coronavirus evictions moratorium is its legality. Not only is it legally dubious, but the White House repeatedly acknowledged as much — before it announced it anyway.
The second big problem, though, could rear its ugly head rather soon. And it involves just how little time the gambit might actually have purchased.
Basically, there is a very good reason the White House said what it did about the legality of this: The courts have weighed in repeatedly against the previous moratorium. And that could leave the new moratorium with a rather brief shelf life.
The Supreme Court in late June allowed the program to wind down, but a majority of justices indicated the Centers for Disease Control and Prevention had exceeded its authority with the moratorium. Justice Brett M. Kavanaugh, who provided a crucial fifth vote to allow it to conclude, said flatly that a renewal would require congressional authorization. (The White House repeatedly cited what Kavanaugh wrote when it was saying Congress had extended it.)
Both before and after that, around a half-dozen courts indicated they also believed the CDC had overstepped, including the 6th Circuit Court of Appeals and, apparently, the 11th Circuit Court of Appeals, though it didn’t address the issue directly.
In sum, there is plenty of reason to believe this will not just be struck down — by a lower court and eventually by the Supreme Court — but that it might also be temporarily halted by some court, somewhere. And soon. Federal courts can issue injunctions if they believe plaintiffs are likely to succeed, and while those injunctions might only apply narrowly to specific plaintiffs or the specific court’s jurisdiction, many in recent years have been applied nationwide.
“I would expect injunctions of differing scopes to be issued rather quickly,” said Nicholas Bagley, a law professor at the University of Michigan. Bagley said that he believed the national discussion about the moratorium increased the chances of a broader injunction: “The fact that the political salience of this has risen means this isn’t just about landlords.”
Added Stephen Vladeck of the University of Texas: “It’s not hard to imagine a district court issuing a preliminary injunction, a court of appeals issuing one pending appeal if the district court doesn’t, and even SCOTUS [the Supreme Court] stepping in if the lower courts don’t.”
The question then becomes: What would happen next?
Effectively, it would mean that the Biden administration and its allies bought a very short period of time to allow the program to proceed, and then they would seemingly have to do, well, something else. Except the House is in recess until Sept. 20, and it didn’t make much headway when the White House belatedly insisted that Congress deal with this issue last week.
The White House declared it to be so important that it decided to do something it wasn’t convinced was legal. So if that falls through, how does it not push for immediate legislative action? But it’s not at all clear this would pass through Congress — especially given the need for GOP support in the Senate — but it would seem to be something that would be important to try, considering the stakes the White House and its allies have declared are involved.
Next, there’s what this could mean not just for the evictions moratorium, but for other related issues. When the White House was still suggesting it couldn’t do this, it pointed to the possibility of an adverse ruling affecting other things. What if the rulings declare not just that the eviction moratorium is illegal, but that the federal government can’t enact other moratoria or pandemic-related public health measures (maybe the student loan freeze, which Biden just extended into 2022)? If that was a valid concern a week ago, it would seem to remain a valid concern now. And it could be something we’re all talking about when this is ultimately decided.
The last potential pitfall here involves raw politics. Conservatives have very logically cried foul over this move, pointing to the White House’s comments that it probably wouldn’t be legal. And even many sympathetic to the policy have agreed. The Washington Post editorial board wrote this week that “Mr. Biden does not get a pass on the rule of law because his heart is in the right place.”
If the courts do strike this down, the transparency of the gambit will only be heightened. Biden will have done something that would, in fact, prove illegal, after having acknowledged that likely outcome.
Bagley summed it up this way: “Now they’re going to have this claim of lawlessness around their neck.”
We’ll have to see how this all plays out, and nothing is certain. But if the program is indeed halted in rather short order, as seems quite possible, what will the White House have gotten out of it? A few days or maybe a couple weeks of an extension? The ability to tell the party’s left flank, whose push for this included Rep. Cori Bush (D-Mo.) sleeping outside the Capitol, that it at least tried? (Despite their own lack of effort ahead of the moratorium expiration, party leaders have gone to great lengths to praise Bush and her allies for forcing this through — which reflects the political sensitivity.)
It all might have seemed worthwhile to the White House in the moment, but the effort must be measured against the potential drawbacks. Given the rushed nature of this process over the past week, it’s pretty apparent there wasn’t a ton of forethought here and that the White House felt the need to respond to pressure from the left — and quickly.
But that’s when mistakes happen. Plenty of ink has been spilled on the legal and governmental problems with that approach. The political problems could well lie ahead.