A federal appeals court ruled Friday that the 60-day eviction moratorium instituted by the Centers for Disease Control and Prevention earlier this month can remain in place — setting up a showdown before the Supreme Court beginning next week.
A three-judge panel of the US Court of Appeals for the District of Columbia rejected a request by a group of Alabama and Georgia landlords to block the moratorium, which the CDC announced Aug. 3.
Hours later, the landlords filed an emergency motion with the Supreme Court. Chief Justice John Roberts, who handles motions coming from the DC courts, ordered the Biden administration to respond by noon Monday.
“As five Members of this Court indicated less than two months ago, Congress never gave the CDC the staggering amount of power it claims,” the 40-page motion read in part.
That was a reference to a 5-4 Supreme Court decision from June that left a previous eviction moratorium in place through July 31. But Justice Brett Kavanaugh, who voted to keep the moratorium, said that further extension of the freeze should require congressional approval.
After Democrats on Capitol Hill failed to get enough support to extend the eviction pause, CDC Director Dr. Rochelle Walensky announced the new freeze. In her statement, Walensky said her order was necessary due to the Delta variant of COVID-19, which has led to an increase in cases, hospitalization and deaths — largely among unvaccinated Americans.
“This moratorium is the right thing to do to keep people in their homes and out of congregate settings where COVID-19 spreads,” Walensky said at the time. “It is imperative that public health authorities act quickly to mitigate such an increase of evictions, which could increase the likelihood of new spikes in SARS-CoV-2 [coronavirus] transmission. Such mass evictions and the attendant public health consequences would be very difficult to reverse.”
The CDC order applies to counties where at least 50 cases of COVID-19 per 100,000 people have been reported over the past seven days — a designation that applied to nearly 95 percent of all US counties as of Friday night. It is currently set to expire Oct. 3, but can be extended or rescinded based on changes in the spread of the virus.
The order also includes criminal penalties for landlords who evict tenants in the affected counties. An eviction that “does not result in a death” can lead to a fine of up to $100,000 and one year in prison, while an eviction that does result in a death would lead to a fine of up to $250,000 and one year in prison.
Shortly before the CDC announced the new moratorium, President Biden admitted to reporters that he thought it was unlikely to pass constitutional muster.
“But there are several key scholars who think that it may, and it’s worth the effort,” he added.
The president also justified the moratorium by saying it would give state and local governments time to hand out nearly $45 billion in unspent rental assistance money included in coronavirus relief bills to help renters and homeowners.
White House press secretary Jen Psaki applauded the appeals court ruling, saying in a statement Friday that the moratorium “is a proper use of its [the CDC’s] lawful authority to protect the public health.”
“Throughout the pandemic, national, State and local eviction moratoria have kept people housed and slowed the spread of COVID-19,” she said. “As we continue our effort to stop the spread of the highly transmissible Delta variant, the eviction moratorium remains vitally important.”
The landlords accused the White House of caving to political pressure and reinstating the moratorium even though it knew it was illegal.
“In light of the Executive Branch’s statement that its litigation efforts are designed to buy time to achieve its economic policy goals — and the fact that landlords are now subject to federal criminal penalties for exercising their property rights depending on where they do business — applicants respectfully ask this Court to issue relief as soon as possible,” their motion read.
Echoing Walensky, the White House had argued before the appeals court that the new moratorium was more targeted than the nationwide ban that lapsed in July, and that the landscape had changed since the June Supreme Court ruling because of the spread of the Delta variant.
With Post wires