After White House legal advisers found he could not extend a national eviction moratorium, President Biden told Chief of Staff Ron Klain to seek the advice of Harvard law professor emeritus Laurence Tribe about whether an alternative legal basis could be devised for protecting struggling renters across the country, according to a person familiar with the matter.
The phone call between Klain and Tribe — held Sunday amid a national outcry over the expiry of the moratorium — set in motion a rapid reversal of the administration’s legal position that it could not extend the eviction ban. Tribe suggested to Klain and White House Counsel Dana Remus that the administration could impose a new and different moratorium, rather than try to extend the original ban in potential defiance of a warning from Supreme Court Justice Brett M. Kavanaugh, the person said.
Senior White House officials Gene Sperling, Brian Deese and Susan Rice had the week before raised internally whether the moratorium could be extended, only to be rebuffed by the White House counsel. But Remus got behind the new strategy after consulting with Tribe and proved instrumental in the effort, working late Monday night to push the measure through, the person said.
On Monday afternoon, when Sperling told reporters the administration saw no legal path forward, the health-care agencies had not yet agreed to back the new moratorium, the person said. By Tuesday, government lawyers in the White House, Department of Health and Human Services, and Centers for Disease Control and Prevention produced a 19-page document to protect the overwhelming majority of renters from eviction until Oct. 3. It was released that afternoon in a remarkable reversal by the White House, which a day earlier had said it did not think it had the authority to extend the ban.
After the administration announced last week that it could not find a legal justification for extending the ban, House Speaker Nancy Pelosi (D-Calif.) recommended to the White House that Biden seek out Tribe’s counsel, according to one person familiar with the matter. PunchBowl News first reported that Pelosi told the White House to seek the advice of Tribe and other lawyers.
The behind-the-scenes story of the White House’s sharp pivot reveals how a Biden administration that prides itself on steering clear of drama found itself swept up in a public relations fiasco and tried to limit the fallout. And Biden’s personal involvement showed that he recognized the implications of failing to act on an issue that had the potential to escalate into a national crisis.
Before the reversal, Biden had been open to extending the ban but accepted the advice of the White House counsel that he had no legal means to do so, the person said. Biden, who served as the top Democrat on the Senate Judiciary Committee, has known Tribe since the 1980s and frequently seeks his legal advice.
“As important as Larry was,” the CDC went forward “because government lawyers got comfortable with this theory,” said the person, who spoke on the condition of anonymity to reveal details of private conversations.
In an interview, Tribe said he was not at liberty to confirm “any conversation I may or may not have had with the White House or [Biden’s] staff” but added that he had spoken to Pelosi about the matter Tuesday afternoon.
Pelosi had carried out a days-long campaign to push the administration to extend the ban, privately lobbying Klain, White House senior aide Steve Ricchetti and the president himself in phone calls, according to a different person familiar with the matter. This person also spoke on the condition of anonymity to reveal details of private conversations. Rep. Cori Bush (D-Mo.), who once was homeless, also played an instrumental role in galvanizing a campaign to call attention to the impact of the moratorium’s expiry on renters.
Tribe added: “It was an incredible whirlwind. It was extremely intense, and I feel very lucky to have been asked by anybody what I thought about this, because a lot of people would have been needlessly hurt.”
The late scramble to provide legal justification for the moratorium reflects the confusion that characterized the White House’s response to the housing crisis facing millions of American renters. After being warned by Supreme Court Justice Brett M. Kavanaugh on June 29 that the court could overturn the ban, the White House for weeks faced mounting calls to clarify its position on the matter. Last Thursday, two days before the moratorium expired, White House press secretary Jen Psaki called on Congress to pass a law authorizing the moratorium — an impossibility for the divided legislature on such short notice.
On Monday, Sperling told reporters there was no possible legal avenue for either extending the existing moratorium or enacting a new, more targeted eviction ban. “The president has not only kicked the tires, he has double-, triple-, quadruple-checked. He has asked the CDC to look at whether you could even do targeted eviction moratorium that just went to the counties that have higher rates, and they as well have been unable to find the legal authority for even new targeted eviction moratoriums,” Sperling said.
Sperling added at that news conference: “I don’t think this means this president is going to give up. I think he’s going to keep looking and pushing. . . . We are still investigating what that legal authority is, whether there is any options that we can have on eviction moratoriums beyond what we’ve seen.”
The next day, the administration reversed itself and said it had found a legal basis for the move — even as Biden publicly expressed doubt about the legality of his administration’s actions.
“The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster,” Biden told reporters, citing conversations with legal experts. “There are several key scholars who think that it may, and it’s worth the effort.” A White House spokeswoman did not provide the names of other scholars the administration depended on to justify the ban.
The eviction moratorium is only the first of many fraught decisions facing the White House as it seeks to move the country beyond the pandemic while also responding to the surging delta variant and pressure from liberal lawmakers in the Democratic coalition.
For instance, the White House has not said whether it supports extending unemployment benefits for millions of gig workers and independent contractors who will lose all jobless benefits Sept. 6. The administration also has not stated its position on the Sept. 30 ending of a pause on the repayment of federally backed student loans. An extension in either case is expected to be strongly opposed by Republicans.
“The core tension of the Biden presidency is that he is trying to unite the Democratic Party while at the same time trying to unite the country. It’s not clear whether these can be done simultaneously,” said Bill Galston, a former Clinton administration official now at the Brookings Institution.
Conservatives and Republican lawmakers were quick to trash the administration for offering a measure they say will hurt small landlords and is not justified by law.
“The Centers for Disease Control does not have power to issue such a moratorium,” said Joel Griffith, a research fellow at the Heritage Foundation, a conservative-leaning think tank. “Biden himself said many of the constitutional scholars he’s spoke to say there’s no legal authority here.”
For others, the measure was a welcome reprieve. Kama Cobel, 30, of Kansas City, Mo., spent three hours in court Tuesday facing eviction and has been terrified she and her daughter would lose their home. She said of learning of the new eviction ban: “It was like finding a buoy in the middle of the ocean after kicking so long to stay above the waves.”