There is a legal axiom that “the wheels of justice turn slowly.” This is not always the case. Favored groups, in this case property owners and big corporations that manage apartments and other multi-family housing units, can get favored treatment in our courts.
The Biden administration went with the new CDC eviction moratorium, knowing full well that that the radicalized U.S. Supreme Court would be hostile to it and would likely strike it down. The administration was playing for time hoping that “the wheels of justice turn slowly,” and the Supreme Court would not get around to it before October 2 when the new CDC eviction moratorium was set the expire. The matter would be moot by then.
But favored property owners and big corporations that manage apartments and other multi-family housing units got an “express pass,” so to speak, in the courts and got a Supreme Court ruling in less than a month.
Late Thursday night, the Supreme Court in an unsigned opinion on its “shadow docket,” struck down the new CDC eviction moratorium, putting millions of Americans immediately at risk of eviction. Amy Howe reports at SCOTUSblog, Court lifts federal ban on evictions:
Just under two months after a divided court allowed an earlier moratorium to remain in place, the Supreme Court on Thursday night blocked the Biden administration from enforcing the latest federal moratorium on evictions, imposed because of the COVID-19 pandemic. The justices divided along ideological lines, with the court’s three liberal justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – dissenting from the unsigned eight-page decision … on the so-called “shadow docket.”
The decision on the eviction moratorium was a decisive rebuke for the Biden administration, with the majority writing that it “strains credulity to believe” that the public-health law at the center of the case gives the Centers for Disease Control the power to enact the moratorium. “If a federally imposed eviction moratorium is to continue,” the court stressed, “Congress must specifically authorize it.”
When the justices were asked to intervene at the end of June, they were considering whether to lift a ban on evictions that applied to all rental properties in the United States. The CDC had extended the moratorium through July 2021.
A group of Alabama real estate agents and landlords went to federal court in Washington, D.C., to challenge the moratorium. They argued that the CDC lacked the authority to impose the moratorium, which they say is costing landlords billions of dollars in unpaid rent each month.
A divided Supreme Court rejected the challengers’ plea to lift the earlier iteration of the ban on evictions. Justice Brett Kavanaugh provided the key vote to keep the moratorium in place. Although he agreed with the challengers that the CDC lacked the power to issue the moratorium, he joined Chief Justice John Roberts and the court’s three liberal justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – in voting to leave the ban in effect, explaining that it was scheduled to expire at the end of July.
The White House initially indicated that the CDC would not extend the moratorium when it expired. But when Congress failed to do so [then left town for August recess], the CDC issued a new version of the moratorium that applied to most, though not all, of the country and was slated to last until Oct. 3.
The real estate agents and landlords returned to court to challenge the new version of the moratorium. U.S. District Judge Dabney Friedrich, who had previously agreed with them that the CDC does not have the authority to issue the ban, reasoned that because the new version was “virtually identical” to the version covered by her earlier ruling, her “hands are tied” by an appeals court decision putting that order on hold.
The challengers then went to the U.S. Court of Appeals for the District of Columbia Circuit, which left the new version of the moratorium in place in a brief order last week.
The challengers came to the Supreme Court on Friday, where they once again argued that “Congress never gave the CDC the staggering amount of power it now claims.” Indeed, the challengers contended, the Biden administration itself initially acknowledged the lack of legal authority for the ban before extending it.
In its filing on Monday, the Biden administration stressed that the new version of the eviction ban was “more targeted” than the earlier versions: It applies only to counties with high levels of community transmission. But, Acting Solicitor General Brian Fletcher stressed, the new version relied on the same statutory authority as prior versions – a federal law that gives the CDC the power to issue regulations to stop the spread of infectious diseases. In this case, Fletcher wrote, the CDC determined that a large number of evicted renters could add to the spread of COVID-19 if they moved in with friends and family or became homeless.
Fletcher characterized statements by the president and others in the White House as merely an “acknowledgement that, at least as things stood on June 29, it appeared likely that five Justices would have voted to vacate the stay if the original moratorium had been extended past July 31.” And although the CDC indicated that it planned to end the ban unless there was “an unexpected change in the trajectory of the pandemic,” Fletcher wrote, that is precisely what happened as a result of the highly contagious delta variant – “dramatically and for the worse.” Hospitalization rates in some places “are approaching, if not surpassing, their winter peaks,” Fletcher added.
In a brief opinion released shortly before 9:30 p.m. on Thursday night, the court acknowledged the public’s “strong” interest in fighting the spread of COVID-19 and in particular the delta variant. But that was not enough to leave the ban on evictions in place. The challengers, the court explained, are “virtually certain to succeed on the merits of their argument that the CDC has exceeded its authority” – a key factor for the kind of emergency relief the challengers were seeking – because the CDC had relied on a “decades-old statute” that gave the agency the power to stop the spread of disease by taking actions like fumigation and extermination. The government’s interpretation, the court continued, would “give the CDC a breathtaking amount of authority” – so much so, the court suggested, that it is “hard to see what measures this interpretation would place outside the CDC’s reach.”
The court noted that, since the earlier proceedings in the case, the government has had additional time to distribute funds to try to help tenants affected by the pandemic. Congress has also, the court observed, been on notice that it would need to take action if the moratorium was going to be extended, but it failed to do so. Emphasizing that “our system does not permit agencies to act unlawfully even in pursuit of desirable ends,” the court concluded that it is now “up to Congress, not the CDC, to decide whether” to extend the moratorium.
Note: About 89% of Rental Assistance Funds Have Not Been Distributed, Figures Show:
The $46.5 billion rental aid program created to pay rent accrued during the pandemic continues to disburse money at a slow pace, as the White House braces for a Supreme Court order that could strike down a new national moratorium on evictions.
The Emergency Rental Assistance Program, funded in the two federal pandemic relief packages passed over the last year, sputtered along in July, with just $1.7 billion being distributed by state and local governments, according to the Treasury Department, which oversees the program.
The money meted out was a modest increase from the prior month, bringing the total aid disbursed to about $5.1 billion, figures released early Wednesday showed, or roughly 11 percent of the cash allocated by Congress to avoid an eviction crisis that many housing experts now see as increasingly likely.
[W]hite House officials have spent months pressuring local officials and tweaking the program to make access easier, and had hoped states would have spent much more by now.
“About a million payments have now gone out to pay back rent for families — it is starting to help a meaningful number of families,” said Gene Sperling, who oversees the operation of federal pandemic relief programs for President Biden.
“It’s just not close to enough in an emergency like this to protect all the families who need and deserve to be protected. So there is still way more to do and to do fast,” he added.
Data released by the Census Bureau on Wednesday illustrated the magnitude of the eviction risk.
An estimated 1.2 million households are very likely to face eviction for nonpayment of rent over the next two months, according to the bureau’s periodic Pulse survey, which extrapolated national totals from a pool of about 70,000 respondents who answered a survey this month.
Of the roughly 2.8 million households that have applied for aid, only about 500,000 reported receiving assistance — another 1.5 million are waiting for approvals, while nearly 700,000 have been rejected, according to the estimates.
And those are just the tenants who have tried to get access to the program: Over 60 percent of vulnerable renters have not even applied.
In his dissent, joined by both Sotomayor and Kagan, Breyer highlighted the difference between the current circumstances of the pandemic and the situation when the challengers asked the court to lift the eviction ban in late June. Over 90% of U.S. counties are now experiencing high levels of COVID-19 transmission, he pointed out, compared with levels in single digits in late June.
Breyer was also less persuaded that the CDC obviously lacked the power to issue the moratorium. He stressed that the lower courts have divided on that question – making it, he wrote, “at least hard to say that the Government’s reading of the statute is ‘demonstrably wrong.’”
More broadly, Breyer objected to his colleagues’ decision to lift the eviction ban through the emergency appeals process. In his view, the questions presented in the case “call for considered decisionmaking, informed by full briefing and argument. Their answers impact the health of millions. We should not set aside the CDC’s eviction moratorium in this summary proceeding,” Breyer concluded.
So what happens now? The New York Times continues:
Mr. Biden’s domestic policy staff has mapped out policy contingencies if the Supreme Court strikes down the moratorium, which is the administration’s principal safeguard for hundreds of thousands of low-income and working-class tenants hit hardest by the pandemic. White House lawyers expect a court decision this week.
Mostly, the response will entail doubling down on existing efforts to speed up flow of the aid. But officials are likely to switch to a triage model, focusing on a handful of states and cities that have weak tenant protections, high backlogs of unpaid rent and low use of the federal rental assistance fund.
[T]he program is administered by the federal government, but it is up to states to build out a system to deliver aid to struggling renters and landlords, and that has been the main source of its problems.
Treasury Department and White House officials acknowledged on a conference call Tuesday evening that the program was not ramping up fast enough to entirely prevent a wave of evictions, even if the justices allow it to remain in place until its scheduled expiration on Oct. 2.
But they also cited progress. State and local agencies have begun to steadily increase payments to hundreds of thousands of households that were at risk of eviction, with most of those going to low-income tenants. They also believe the pace of payments has continued to accelerate in August.
Administration officials continue to blame the program’s struggles on local officials, many of whom are reluctant to take advantage of the new fast-track application process, which allows tenants to self-certify on applications, freeing them from the need to provide detailed documentation.
The new guidance emphasized that applicants can “self-attest” to declare their eligibility for rental aid without the need for additional documentation. The Treasury Department believes that this will expedite the process by reducing cumbersome paperwork requirements.
The Treasury Department also took action to empower nonprofit organizations to more quickly provide relief to tenants who are facing eviction.
In recent weeks, local officials have complained that moving too fast on aid applications could lead to errors, fraud and audits; the White House has countered by telling them that those risks are insignificant compared with a wave of evictions hitting tenants who did not get their aid quickly enough to keep a roof over their heads.
“They can and should use simpler applications, speedier processes and a self-attestation option without needless delays,” Mr. Sperling said.
[S]tates that have not used much of their money by the end of September could see their funds reallocated to other states that have been able to distribute it more effectively.
It will take local housing courts weeks to clear the backlog of eviction cases delayed by the moratorium. But many owners, especially small landlords, have rejected the federal aid, arguing that evicting nonpaying tenants is not only their right but the most effective way of ensuring their revenue is not interrupted in the future.
[A]dministration officials, worried that the new moratorium could be struck down at any time, are also turning to state courts — which adjudicate tenant-landlord disputes — to help deliver aid, by pressuring landlords to accept federal payments instead of proceeding with evictions, and educating tenants, who often have no legal representation in court, on their right to apply for assistance.
Congress could enact a new eviction moratorium, but the problem, as always, remains the Senate filibuster rule. “Phil A. Buster” must die if we are ever to address the many problems confronting this nation.
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