Only one day after the Biden administration issued a new policy protecting renters from eviction, a series of real estate and landlord groups is trying to invalidate it — setting up another legal showdown over a moratorium that Democrats say is essential to keeping Americans in their homes.
In filing the new legal salvo, the real estate, landlord and property-management groups at times cite the White House’s own, previous admissions that it did not have the authority to issue another ban. For days, the president’s top aides had insisted they needed Congress to draft legislation, only to cave amid pressure from Democrats as they struggled to pass a law.
The industry opponents even referenced comments from President Biden himself, who said on Tuesday in the hours before the new eviction policy was announced that it was at risk of being upended in the courts — an admission, real estate groups said, that the administration knew it had acted unlawfully.
If successful, the challenge threatens fresh uncertainty for perhaps millions of Americans who are behind on their monthly rents, facing the prospect of eviction or struggling to obtain federal aid. Democrats have stressed the protections are especially important given the recent surge in the delta variant of the coronavirus, since families forced into cramped or unsafe living conditions could be at greater risk for contracting and spreading the disease.
The White House did not immediately respond to a request for comment.
The legal saga began earlier this year, when federal Judge Dabney L. Friedrich ruled against the Biden administration but allowed its first eviction policy to remain in place pending an appeal. That stay eventually landed both sides at the Supreme Court, where the justices allowed the moratorium to stay in place until the end of July, when it was set to end.
In the 5-to-4 vote, Justice Brett M. Kavanaugh joined the majority, and was the only justice to explain the vote. He said the CDC lacked authority, but wanted an orderly end to its eviction policy, adding that any extension would require “clear and specific congressional authorization” through new legislation.
The adverse order prompted the White House to refrain from seeking an extension of the eviction safeguards, as top aides to the president acknowledged just days before the deadline at the end of July that only Congress could fix the problem. But the Biden administration ultimately caved days later, after sustained political pressure from congressional Democrats led by Rep. Cori Bush (Mo.), who insisted the White House did have the law on its side.
The CDC’s new protections differ from the original rules: They cover renters in the areas with the highest risk of coronavirus transmission, though the approach still covers a vast swath of the country.
In its legal filing, however, the Realtor and landlord groups describe the policy not as a new moratorium but as an extension of the past approach that the judge had invalidated. It argues the CDC “caved to political pressure,” and did so “without providing any legal basis for its action.”
“Critically, the CDC knew that the White House had repeatedly stated that new legislation was necessary to extend the moratorium, given the absence of executive legal authority,” the new motion contends. “Congress tried, but failed, to enact a legislative extension in reliance on those representations. Yet rather than accept that as the final word under our constitutional system (which the White House initially appeared to do), the CDC extended the moratorium anyway.”
Biden on Tuesday appeared to anticipate the legal challenge, telling reporters in the hours before the CDC issued its new directive that some of the scholars he consulted did not feel the policy comported with the U.S. Constitution. But Biden and other Democrats maintained that it was worth trying anyway, particularly since the federal government has struggled to disburse roughly $46 billion in federal aid to renters at risk of losing their homes.
“I have been informed [the CDC is] about to make a judgment as to potential other options,” Biden said Tuesday at a news conference. “Whether that option will pass constitutional measure with this administration, I can’t tell you. I don’t know,” Biden said at a news conference. “The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster. … But there are several key scholars who think that it may and it’s worth the effort.”
The legal threat from here could shift the political burden back to Capitol Hill, where Democrats have encountered steep opposition to enacting an eviction moratorium for renters through legislation. Moderate-leaning Democrats in the House balked at the idea in the hours before the chamber went on its summer recess, while party lawmakers don’t have enough of a majority in the Senate to overcome an expected filibuster from Republicans. The political obstacles prompted many liberal lawmakers to demand the Biden administration take action in the first place.
Robert Barnes contributed to this report.