Even President Joe Biden did not sound particularly confident his administration’s new freeze on evictions would hold up in court when he explained the move in the East Room this week. Instead, he said the new ban, even if challenged, would at least “give some additional time” for billions in unspent housing relief dollars to reach those in need.
A day later, Biden’s words were already being quoted verbatim by lawyers for a group of landlords seeking to put the new freeze on hold, who claimed Biden admitted to a “delay tactic” in his remarks.
The scramble this week to prevent potentially millions of Americans from being evicted bore classic hallmarks of Biden’s decision-making process: He blew past a deadline as he continued weighing all of his options; gathered a wide array of voices to offer him advice; and, when it was all over, spoke out loud what some advisers would rather he have kept quiet, lending legal and political fuel to his opponents.
“I got on the phone and contacted a number of constitutional scholars I’ve relied on for years beyond my own team, and there was a split,” Biden said Thursday on the South Lawn, where he was promoting electric vehicles. “And the consensus of the folks that I have used the most said, ‘We think you have the authority to do it.’”
“But in this court,” Biden added, “who knows?”
Some officials acknowledged privately Biden’s willingness to explain all of his motives hadn’t necessarily been helpful. It’s a personality trait that Biden is the first to acknowledge amounts to “saying all that I mean and meaning all that I say.”
Sometimes that prompts a hurried walk-back, like when Biden created turbulence for his freshly-struck bipartisan infrastructure deal earlier this summer by saying he wouldn’t sign it if it wasn’t accompanied by another, larger package of social programs.
This time, Biden doesn’t appear ready to walk anything back – even if he’s admittedly less-than-confident in his legal prospects.
“I can’t guarantee you the court won’t rule that you don’t have that authority. But at least we’ll have the ability, if we have to appeal, to keep this going for a month at least,” he said Thursday before climbing into a silver Jeep Rubicon and circling the White House driveway.
At odds with his own party
Ultimately, the evictions issue appeared to catch many Democrats off-guard and left Biden vulnerable to accusations of callousness from his own party. Attempts to resolve it pitted administration lawyers against some of Biden’s policy and political advisers, who, along with the President, were eager for a resolution that would avoid images of Americans being removed from their homes.
“No one really wanted this to unfold the way it did and it was intense getting to a decision,” one person involved in the discussions said, adding that Biden’s team is now in agreement on the strategy.
The episode exposed a rare but significant disconnect between Biden and members of his party, who lobbed accusations toward the White House that it had de-prioritized an issue with potentially grave consequences.
Without exactly saying it out loud, the White House suggested the limits of Biden’s power to extend the moratorium should have been obvious to anyone paying attention. And they pointed to efforts over the past months to accelerate the distribution of emergency rental funds, which have bottle-necked at the state level.
Throughout the course of last weekend, which Biden spent at Camp David, he spoke at multiple junctures with House Speaker Nancy Pelosi, who steered the White House toward outside lawyers, including Harvard professor Laurence Tribe, who helped formulate the solution unveiled on Tuesday: a more limited ban from the US Centers for Disease Control and Prevention on evictions in areas of the country with high rates of Covid-19 transmission.
In the end, officials insisted the administration’s lawyers were on board with the plan. The White House said Biden would not have supported a decision he did not find legally sound. And Attorney General Merrick Garland said Thursday the Department of Justice “has vigorously defended the statutory authority of the CDC to issue eviction moratorium and we will continue to do so.”
Finding a legal argument to do it
Still, the lengths the White House went to to identify a new avenue for Biden to take — and the apparent reversal of its earlier legal stance — underscore the heightened urgency surrounding the issue.
Just a day before the new freeze was announced, lawyers for the CDC had informed the White House they were unable to find any legal pathways either to extend the moratorium or enact a new, more limited one in areas with high viral spread. Biden, after consulting with legal advisers both inside and outside the White House, had asked them to look into that option the night before.
On Monday afternoon, a senior official told reporters the administration had not identified any legal avenues to extend the moratorium.
“The President’s not only kicked the tires. He has doubled, tripled, quadruple checked,” Gene Sperling, who is responsible for overseeing the coronavirus relief effort, said in the White House briefing room. He noted the search effort was ongoing.
Last week, Sperling had been among the top Biden aides — along with Domestic Policy Adviser Susan Rice and National Economic Council director Brian Deese — who had lobbied their colleagues to reconsider the President’s legal options for prolonging the eviction moratorium, aware of the looming deadline.
But top administration lawyers had been clear that doing so could risk both running afoul of the Supreme Court and potentially endangering Biden’s ability to enact further emergency public health orders in the future.
Animating the Biden administration’s response was a written explanation from Justice Brett Kavanaugh, who sided with the liberal justices in allowing the moratorium to remain in place in June, saying “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”
Even second and third looks into the legalities yielded no options, officials said, leading the White House to say last Thursday that Biden would be unable to extend the moratorium — 60 hours before it expired. Democrats were furious.
“We thought the White House was in charge,” Rep. Maxine Waters of California, who sponsored an unsuccessful measure to extend the moratorium in Congress, said over the weekend.
Another Democrat, Rep. Cori Bush of Missouri, staged a protest on the steps of the US Capitol to underscore the stakes of the matter. She herself had previously been left without housing, and brought a stark personal perspective to the issue.
Biden did not speak with Bush, according to the White House, though Vice President Kamala Harris did have a conversation with the congresswoman when Harris was on Capitol Hill on Monday.
Ultimately, it was Pelosi — who had come under fire from members of her caucus after a push to extend the evictions ban collapsed in Congress — who aggressively pushed Biden and his senior aides over the phone to find a legal argument to extend the ban administratively.
The President, who insists he did not tell the CDC what it should decide, instructed the agency’s lawyers to consult with the same legal scholars who advised him a more limited moratorium could pass muster.
By the time Tuesday arrived, lawyers at the CDC had determined the path Biden asked them to investigate was possible, even though a day earlier they’d said the opposite.
When they came back with a different stance, Biden said he was grateful.
“I said, ‘okay, thank you,’” he recalled Thursday, declaring it the final time he’d explain himself.