Did Joe Biden Poop On Constitution With Eviction Moratorium? Let's Lawsplore!

TL:DR: NOPE!

Aug 12, 2021

First, the nationwide ban on evictions expired. Then, it came back. For now.

Two days after the CDC's eviction moratorium order expired, and at the urging of Rep. Cori Bush and House Speaker Nancy Pelosi, the Centers for Disease Control issued a new order banning evictions.

The problem? It's basically guaranteed to get struck down the second it gets to the Supreme Court.

The Biden administration knew when it issued the order that SCOTUS would eventually strike it down. But some things are more important than any political costs. So they stepped in to do the right thing. And this courage could help keep untold numbers of people housed as the Delta COVID variant ravages our country.

(If you're one of the millions of Americans struggling to pay your bills right now, here's your Wonkette guide to emergency rental help!)

Here's the background

The first COVID relief bill passed by Congress was the CARES Act, signed into law in March 2020. Among other things, the CARES Act created a 120-day moratorium on eviction filings for rental properties that participate in federal assistance programs. When it expired, the Department of Health and Human Services, via the CDC, issued a broader eviction moratorium that applied to all rental properties. Congress extended the CDC order once and the CDC extended the order twice.

Then, the property-owning class stepped in.

Landlords have been screeching about the eviction moratorium for a while now. Rather than simply choosing to stop eating avocado toast or find a profession that doesn't involve living off of passive income given to them by the working class, the property owners sued.

Led by the Alabama Association of Realtors, a group of landlords challenged the CDC's authority to ban evictions without congressional approval. Shockingly , Trump-appointed District Judge Dabney Friedrich sided with the landlords.

The CDC's last eviction ban expired on July 31. But, before it expired, there was quite a bit of action in Alabama Association of Realtors v. HHS . Judge Friedrich ruled that the CDC did not have authority to enact the eviction moratorium, but also stayed her ruling, so the moratorium stayed in place while the case was appealed. The DC Circuit reversed Friedrich, leaving the moratorium in place.

You know where this is heading by now, right? The Supremes.

When the eviction moratorium got up to the Supreme Court, it stayed in place ... just barely. Justice Brett Kavanaugh was part of the 5-4 majority that kept the moratorium in place, but wrote a concurrence saying he would definitely strike down any more extensions that aren't approved by Congress.

I agree with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium. Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application to vacate the District Court's stay of its order. In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.

Advocates for unhoused people, progressive Democrats, and people with hearts tried their damnedest to get Congress to act. Badass Missouri Congresswoman Cori Bush, who has herself been evicted and unhoused, literally slept on the Capitol steps in an effort to remind her colleagues that millions of people are at risk of losing their homes. Bush was joined by other progressives like Ilhan Omar, Ayanna Pressley, and Elizabeth Warren.

But still, Congress failed to act. "Moderate" Democrats decided that placating landlords and getting money from rich people to fund their reelection campaigns was just more important than staving off a nationwide eviction crisis. Republicans, of course, are almost always opposed to policies that help poor and struggling people.

On August 1, the eviction moratorium expired. Predictably , lots of landlords immediately sued to kick people out of their homes. But then, something wonderful happened.

Two days later, the Biden administration said, "You know what? Fuck this." And CDC Director Dr. Rochelle Walensky signed a new, narrower order protecting renters. Unlike the previous orders and extensions, it applies only in areas where COVID is on the rise (which, right now is around 85 percent of the country, which, YIKES).

The usual pearl-clutchers are SHOCKED , JUST SHOCKED that the Biden administration would issue an order that it knows will eventually get struck down. Never mind that the last guy kept issuing new Muslim Bans until he found one that stuck, tried to start race wars, and, oh yeah, TRIED TO STAGE A FUCKING COUP — President Biden did something he knows our corporate overlords on the Supreme Court will disapprove of.

Fuck that. We are in the midst of a national crisis and we need to do whatever we can to keep people in their homes.

Inject it straight into my veins

So yeah. When the eviction moratorium gets back up to the Supreme Court, it's getting struck down. But the Biden administration said, "You know what? Let's just do it and be legends."

And you know what? I'm fine with it.

Actually, scratch that. I'm more than fine with it.

It's brilliant. I fucking love it.

Judge Friedrich, on the other hand, is less than pleased.

You see, when their appellate court or the Supreme Court has ruled on an issue, that's what's called "binding precedent" — and district courts are required to follow it. And, yes, we know from Justice Kegstand's concurrence that he's going to side with his fellow fascists when this order gets back up to SCOTUS.

Guess what? His concurrence is not binding precedent.

But you know what is binding precedent for Judge Friedrich? The DC Circuit decision that reversed her the last time around.

At a hearing earlier this week, Judge Friedrich accused the DOJ of "gamesmanship," but also expressed her doubt that she could strike down the moratorium while the DC Circuit's decision remains on the books.

"Given that this order is almost identical to the CDC's earlier order, it's really hard in light of the Supreme Court's decision ... to conclude that there's not a degree of gamesmanship going on," U.S. District Judge Dabney Friedrich told a Justice Department attorney at a hearing on Monday.

As many have pointed out, including the DOJ lawyers at the hearing and Press Secretary Jen Psaki, this order is more narrowly crafted than the previous order and the Delta COVID-19 variant has changed the game as far as the public health situation goes.

The lawyers also reminded Friedrich that she's not supposed to guess about what she thinks SCOTUS is going to do in the future.

"There's good reason why district courts are not asked to speculate about how the Supreme Court will rule on an issue," [DOJ lawyer Brian] Netter said. "Justice Kavanaugh's concurring opinion is not governing and it does not reflect the ruling of the Supreme Court."

Judge Friedrich wasn't happy but also didn't really seem like she knew what to do.

Though Friedrich wasn't sold on the legal backing for Biden's extension, she said that she felt that her hands were tied based on the appellate court decision.

"Tell me why my hands are not tied in light of the D.C. Circuit's opinion?" Friedrich asked [the attorney for the landlords]. [...] "I'm having a hard time with that argument because the D.C. Circuit considered on appeal the same issue that I'm facing now[.]"

Fucking beautiful.

Doing right to do good

Over at The Nation, Elie Mystal called the extension "a rare act of presidential civil disobedience." I love the sentiment, but I don't think I would even go that far.

The fact is, the eviction moratorium has not yet been found unconstitutional by the Supreme Court. There is no legal or ethical requirement that says the executive branch must only do things it believes Brett "I like beer" Kavanaugh will approve of. And there is no binding SCOTUS precedent saying what the CDC is doing is illegal.

The Biden administration is doing the right thing. And, even though it's almost certain that the CDC's latest ban on evictions is going to be short-lived, it's more than worth the political cost if it helps keep people off the street.

Hell yeah.