In an unusual press conference Tuesday, President Joe Biden suggested that he was playing out the judicial clock by issuing a new, more tailored eviction moratorium, which he believes may ultimately fail in the courts.
Already, a lawsuit challenging the new eviction moratorium from the Centers for Disease Control and Prevention has been revived, with eyes turning to what the Supreme Court has – and hasn’t – previously said. The court hasn’t said an eviction moratorium is unconstitutional, but justices have indicated they may be unsympathetic to the White House’s case.
How did we get here?
On May 5, Judge Dabney Friedrich, a Trump appointee who sits on the US District Court for the District of Columbia, said as clearly as she could that she believed the Centers for Disease Control and Prevention exceeded its authority when it established the eviction moratorium, siding with a group of landlords in Alabama.
“The pandemic has triggered difficult policy decisions that have had enormous real-world consequences,” Friedrich wrote, adding, “nationwide eviction moratorium is one such decision.”
But, she said, she was looking at a narrow question: whether the Public Health Service Act gave the CDC the authority to impose a nationwide eviction moratorium.
“It does not,” she concluded. In fact, she said, the law “unambiguously forecloses” the nationwide eviction moratorium.
A week later she agreed to put her order on hold at the Biden administration’s request. She noted that courts in Georgia and Louisiana had ruled differently.
Friedrich also said that the landlords in that case had not met the burden of showing that an irreparable injury is likely and that there were estimates that as many as 433,000 cases and “thousands of deaths” could be attributed to lifting the ban.
A stay in the case would give a federal appeals court the time to review the ruling, Friedrich said, adding that it would “no doubt result in continued financial losses to landlords.”
The group of landlords then went to the US Court of Appeals for the District of Columbia Circuit asking the court – on an emergency basis – to lift the stay while the appeals played out. On June 2, a three-judge panel of that court, made up of Patricia Millett, Nina Pillard, and Robert Wilkins, (all Obama nominees) said the stay should remain in place.
Unlike Friedrich, the appeals court thought the administration would ultimately win the case.
“Congress expressly determined that responding to events that by their very nature are unpredictable, exigent, and pose grave danger to human life and health requires prompt and calibrated actions grounded in expert public-health judgments,” the appeals court held.
The Supreme Court rules
Lawyers for the landlords then filed a motion for emergency relief at the Supreme Court on June 3, asking to remove the stay on Friedrich’s ruling blocking the eviction moratorium – in essence letting the moratorium end early.
Before the Supreme Court acted, the Biden administration said the eviction moratorium would end on July 31.
Ultimately, five justices, with Chief Justice John Roberts and Justice Brett Kavanaugh siding with the liberals, denied the request to lift the stay.
But here’s the catch: Although the court was just acting on the emergency request to put the moratorium on hold, its analysis included whether there was “reasonable probability” that four justices would ultimately agree to review the merits of the case and if “irreparable harm” would result from the denial of the stay.
Because this was an emergency request, there were no oral arguments, no briefing schedule, no reasoned opinion. Simply an order denying the relief.
Critically, Kavanaugh, who cast the swing vote, explained his vote. He said he agreed with the Friedrich’s district court’s ruling that the CDC had exceeded its authority by issuing a nationwide eviction moratorium. But he said that because the moratorium would expire in “only a few weeks” he would deny the application to lift the stay.
“In my view,” he added, “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”
Impact of Kavanaugh’s response
Kavanaugh’s vote is what is animating the Biden administration’s response.
Biden seemed to suggest that the Supreme Court had issued a reasoned opinion ruling once and for all that the mandate was unconstitutional.
The “courts made it clear that the existing moratorium was not constitutional,” Biden said Tuesday.
The court did not do that; it simply denied the landlord’s request for emergency relief. But Biden was reading the writing on the wall. Kavanaugh suggested that after the expiration, he thought Congress would have to act anew
Because four other conservatives, Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett noted that they would have sided with the landlords, and Kavanaugh said he was willing to do so after expiration, it seems clear extending the mandate could be in similar trouble.
Biden acknowledged that on Tuesday – hinting at a political motive designed to give Congress room to maneuver. “By the time it gets litigated,” he said, the dispute will give the administration “additional time.”
White House press secretary Jen Psaki on Wednesday responded to criticism from the progressive wing of the Democratic party that Biden’s comments on the constitutionality of the new moratorium may serve as a “self-fulfilling policy.”
“The President shares their desire, their commitment, and their interests in keeping renters and people in their homes, and that is exactly why he took the step of asking the CDC to look into what legal pathways forward there were, and yesterday’s announcement was a reflection of that,” Psaki said. “We don’t control the courts, we don’t know what they will do, we are all aware of the Supreme Court decision at the end of June and what was outlined in their decision at the end of June – this is also going to be a temporary solution regardless, and longer term solutions will require legislative action.”
CNN’s Kevin Liptak contributed to this report.