Why Biden’s tenants eviction ban faces legal challenges

Washington, USA | Xinhua | U.S. President Joe Biden has partially extended a ban on evicting tenants who have been economically impacted by COVID-19. But it remains unknown whether the moratorium will survive mounting legal challenges.

Last year, after the pandemic hit, capacity restrictions on businesses such as restaurants and bars sparked a surge in unemployment, with millions of Americans unable to pay rent. The Centers for Disease Control and Prevention (CDC) banned landlords from evicting tenants in September.

As the moratorium expired on July 31, the CDC soon issued a more targeted version of the ban, which hones in on areas heavily impacted by the spread of the Delta variant.

The extension was granted Tuesday after outcry from Democrats and progressives against evictions, and is expected to be in place for 60 days.

“Every single day that we wait, thousands of people are receiving eviction notices, and some of them are being put out on the street,” the New York Times quoted Democratic Representative Cori Bush, who had been sleeping on the Capitol steps to protest the end of the moratorium.

The National Apartment Association last week filed a lawsuit in a bid to regain their massive losses. The organization estimates that the industry is over 26 billion U.S. dollars in debt.

“The government has intruded into private property and Constitutional freedoms, and we are proudly fighting to make owners whole and ensure residents’ debt is wiped from their record,” said Robert Pinnegar, the group’s chief executive, in a statement on the organization’s website.

Landlords in Alabama, who failed in litigation to lift the earlier ban, returned to a federal court in Washington, D.C. late Wednesday, asking for an order that would allow evictions to resume.

The new filing stated that “the CDC caved to the political pressure by extending the moratorium, without providing any legal basis.”

While the Supreme Court in June upheld the previous moratorium through the end of July, Justice Brett Kavanaugh issued a brief saying he voted reluctantly for it, and that he believed the CDC had overstepped its legal authority to enact such a ban.

In the majority opinion, Kavanaugh said “clear and specific congressional authorization” is required to extend the moratorium further.

Hours before the CDC issued the new moratorium order on Tuesday, Biden contended that “the bulk of the constitutional scholarship says it’s not likely to pass constitutional muster.”

“There are several key scholars who think that it may, and it’s worth the effort,” Biden said. “But at the minimum, by the time it gets to litigated, it will probably give some additional time” for states and localities to release billions of dollars in federal relief to renters.

Those remarks drew immediate frustration from progressive Democrats on Capitol Hill, with Mondaire Jones, who represents New York in the House, predicting that Biden’s words would be seized by lawyers hired by landlords to file litigation against the new moratorium.

“It is odd, I think, to raise issues about the constitutionality of your own executive action shortly before making that executive action,” Jones said.

Some legal experts agreed that a protracted legal fight would buy the administration time to help tenants in dire straits.

Brookings Institution Senior Fellow Darrell West told Xinhua that potential litigation over the moratorium “will take months to resolve, which buys several months to get COVID under control and time to address the eviction issue.”

In an interview with Xinhua, Clay Ramsay, a researcher at the Center for International and Security Studies at the University of Maryland, predicted that the moratorium would not survive legal challenges.

“There is no permanent basis on which the federal government can control landlords who are not getting compensated by their tenants. Only the health emergency provides some temporary basis,” Ramsay said.

The existence of a public health emergency is exactly what has been cited by the CDC as its authority in issuing the ban. The Public Health Service Act of 1944 gives the Department of Health and Human Services, of which CDC is a part, the authority to declare and respond to public health emergencies and control communicable diseases.

Landlords opposing the ban said that despite some homeowners being wealthy, many others are middle class individuals who rent out a small house or even just a room in their own home.

Statistics from the Department of Housing and Urban Development show that 41 percent of all rental housing units in the United States, and most of the affordable housing options, are owned by individuals, or “mom-and-pop” landlords, and the rent they receive from their tenants is often a large part of their own income.

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XINHUA