CDC Announces New Eviction Moratorium, Likely To Face Challenge Before The Radicalized Republican Supreme Court

On Friday, House Democratic leaders scrambled to find enough votes to extend the eviction moratorium beyond the July 31 deadline. The House could not muster enough votes among Democrats alone to pass an extension. Democrats then tried to pass an extension of the eviction moratorium by unanimous consent, but Republicans objected.

Even if House Democrats had reached an agreement to extend the ban, Senate Republicans have repeatedly objected to the policy.

On Sunday, the CDC federal eviction moratorium expired. On Monday, Landlords, tenants filled courts as the eviction moratorium ended.

But over the weekend, congresswoman Cori Bush (D-Mo) (photo above) slept overnight on the steps of the US Capitol to protest her House colleagues for adjourning for August recess without passing an extension of the US Centers for Disease Control and Prevention’s eviction moratorium for renters, which expired on Saturday night. House Democrat sleeps on Capitol steps as she blasts lawmakers over expiring eviction moratorium:

“The House is at recess. People are on vacations. How are we on vacation when we have millions of people who could start to be evicted tonight?” Bush, a Missouri Democrat, told CNN’s Jessica Dean on “Newsroom” Saturday afternoon. “There are people already receiving and have received pay or vacate notices that will have them out on tomorrow. People are already in a position where they need help, our most vulnerable, our most marginalized, those who are in need.”

“How can we go vacation? No, we need to come back here,” Bush said from the steps of the US Capitol where she had slept overnight in an effort to appeal to her colleagues to extend the moratorium.

Bush called on the Senate to extend the moratorium before the chamber is slated to start its recess at the end of next week. She also called on the CDC and White House to extend the moratorium, but the White House has cited a Supreme Court opinion last month that said congressional action would be needed to extend it past July 31.

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Pelosi made clear Saturday night in a letter to her House Democratic colleagues that even if the House passed legislation to extend the eviction moratorium, “it was obvious that the Senate would not be able to do so” as well.

Pelosi wrote that “some in our Caucus have now chosen to focus instead on how we could get the money allocated in the December Omnibus and the Biden American Rescue Plan in the hands of the renters and landlords.”

“Overwhelmingly, our Members support extending the moratorium,” the Speaker continued. “Universally, our Members demand that the $46.5 billion provided by Congress be distributed expeditiously to renters and landlords.”

In a letter to House Democrats Monday, Pelosi said it was on the Biden administration to extend the moratorium [because Congress is paralyzed to act?] “The money must flow, and the moratorium must be extended by the Administration,” Pelosi wrote, referring to rental assistance included in coronavirus relief legislation that hasn’t yet reached people who need it. Pelosi Still Wants Biden To Reinstate Eviction Moratorium. White House Says It Can’t.

The White House has maintained it cannot act on the issue. “On this particular issue, the president has not only kicked the tires, but double-, triple- and quadruple-checked,” Gene Sperling, a senior adviser to Biden, said Monday, adding that the Centers for Disease Control and Prevention has been “unable to find legal authority” to extend the moratorium even in a more targeted manner.

The Supreme Court ruled in favor of allowing the federal eviction moratorium to stay in place through July, but indicated that any further extension would need congressional authorization.

See, Alabama Association of Realtors v. Department of Health and Human Services, (Thomas, Alito, Gorsuch Barrett, and Kavanaugh), specifically, the concurring opinion of Justice Brett “I like beer” Kavanaugh: “In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”

While an extension on the executive level — essentially forcing the Supreme Court to rule on the issue again, as Pelosi is calling for — could buy renters some time, legal challenges would likely come immediately.

Sperling noted that on a “personal” level, he is concerned pushing a conservative-majority court to decide the fate of the moratorium once again could put other public health orders at risk.

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States and cities have ramped up the distribution of those funds recently, but it has been an extremely slow process. From January through June, only $3 billion of the $46-billion fund approved by Congress had been distributed, according to the Treasury Department

States have reported serious backlogs due to outdated programs that could take months to streamline.

In her letter, Pelosi also encouraged lawmakers to spend their time at home working to “urge the immediate disbursements of funds to tenants and landlords.”

The White House on Monday sought to limit the impact of the expired moratorium, demanding that states speed up disbursement of billions of dollars in bottled-up rental aid while pleading with local governments to enact their own extensions. Administration Seeks to Blunt Effects From End of Eviction Moratorium:

President Biden — under fire from the left of his party for not extending the freeze and eager to prove he was taking action to prevent evictions — directed federal agencies to consider targeted extensions for tenants in federally subsidized housing, asked state judges to slow-walk eviction proceedings and called for a review of problems that have slowed the flow of aid.

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Landlords have long argued that eviction moratoriums violate their property rights, and deny them their most effective mechanism for dealing with problematic tenants. Last week, the country’s biggest trade group for residential landlords, the National Apartment Association, sued the federal government, claiming that the freeze cost owners around $27 billion not covered by existing aid programs.

The Washington Post editorialized, There’s plenty of money to avoid evictions. States just have to spend it.

Democrats are pointing fingers: progressive lawmakers have criticized conservative Democrats and House Speaker Nancy Pelosi (D-Calif.), while Ms. Pelosi blames the Biden administration and Republicans. In truth, this is not the administration’s fault, nor is it Congress’s. Washington has provided money. States are just failing to distribute it, a bureaucratic disaster that will squeeze landlords and commit perhaps millions of renters to extreme financial hardship, even homelessness.

[C]ongress approved $47 billion worth of such assistance in successive covid-19 aid bills. The eviction moratorium lasted long enough for states to begin handing out this money. The transition from moratorium to rental assistance should have been smooth. It has instead been devastatingly inefficient: States have distributed only about $3 billion of the $47 billion.

Most states have not distributed rental aid since the 2008-2009 recession, so they have had to construct new bureaucracy to dole out assistance. Income verification and other hassles lengthen approval times. Some renters and landlords do not even know assistance is available. The result is that some states have distributed only single-digit percentages of their allotted aid, with application wait times reaching 60 days in some places.

On Monday, administration officials made clear that they could do only so much, blaming sluggish implementation at the state level for the fact that the $47 billion Emergency Rental Assistance program has disbursed only $3 billion — just 7 percent of the total.

The pace of aid reaching tenants has increased significantly in recent months, with $1.5 billion being disbursed to 290,000 households in June. Officials said it is improving by the day.

“We expect these numbers to grow, but it will not be enough to meet the need, unless every state and locality accelerates funds to tenants,” Gene Sperling, who is overseeing pandemic relief efforts for Mr. Biden, told reporters at the White House.

“There is no place to hide for any state or locality failing to accelerate their emergency rental assistance funds,” he said.

Mr. Sperling also pressed for the extension of existing local moratoriums, saying that a third of renters nationally are already protected by state and city governments. He suggested the rise in virus cases caused by the Delta variant gave localities ample justification to take bolder measures.

But many Democrats, including Speaker Nancy Pelosi, have called on Mr. Biden to reconsider his decision not to act unilaterally, and have expressed anger that the White House gave lawmakers only two days to try to ram through legislation to extend the freeze last week. [Excuse me, but every member of Congress knew what the Supreme Court ruled at the time. Congress must show some initiative.]

[The Biden administration argued] that a recent Supreme Court ruling made it nearly impossible to order an extension without jeopardizing the right of the executive branch to put in place emergency policies during public health crises.

Some Democrats rejected that argument, saying the White House could have acted and then fought the issue out in court again. [Risk another adverse ruling.]

[Mr.] Sperling said in an interview that West Wing officials wanted to extend the moratorium. “But what was clear from the legal analysis was that we had already litigated this issue all the way to the Supreme Court,” he said.

On Tuesday, the Biden administration reversed itself and decided to roll the dice on a new legal challenge before the radicalized Republican Supreme Court that could jeopardize executive authority to deal with public health emergencies.

The Associated Press reports, CDC issues new eviction ban for most of US through Oct. 3:

The Centers for Disease Control and Prevention issued a new eviction moratorium that would last until Oct. 3, as the Biden administration sought to quell intensifying criticism from progressives that it was allowing vulnerable renters to lose their homes during a pandemic.

The ban announced Tuesday could help keep millions in their homes as the coronavirus’ delta variant has spread and states have been slow to release federal rental aid. It would temporarily halt evictions in counties with “substantial and high levels” of virus transmissions and would cover areas where 90% of the U.S. population lives.

The announcement was a reversal for the Biden administration, which allowed an earlier moratorium to lapse over the weekend after saying a Supreme Court ruling prevented an extension. That ripped open a dramatic split between the White House and progressive Democrats who insisted the administration do more to prevent some 3.6 million Americans from losing their homes during the COVID-19 crisis.

Speaking at the White House on Tuesday, Biden said he pushed the CDC to again consider its options. But he still seemed hesitant as to whether the new moratorium could withstand lawsuits about its constitutionality, saying he has sought the opinions of experts as to whether the Supreme Court would approve the measure.

“The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster,” Biden said. “But there are several key scholars who think that it may and it’s worth the effort.”

The president added that the moratorium — even if it gets challenged in court — “will probably give some additional time” for states and city to release billions of dollars in federal relief to renters.

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Administration officials had previously said a Supreme Court ruling stopped them from setting up a new moratorium without congressional backing. When the court allowed the eviction ban to remain in place through the end of July by a 5-4 vote, one justice in the majority, Brett Kavanaugh, wrote that Congress would have to act to extend it further.

But on Tuesday, the CDC cited the slow pace of state and local governments disbursing housing aid as justification for the new moratorium.

Aside from the moratorium, Biden has insisted that federal money is available — some $47 billion previously approved during the pandemic — that needs to get out the door to help renters and landlords.

“The money is there,” Biden said.

The White House has said state and local governments have been slow to push out that federal money and is pressing them to do so swiftly.

Supreme Court reporter Ian Millhiser explains that all of the finger pointing over the past week was misplaced. The real villain here is the radicalized Republican Supreme Court. The lapsed eviction moratorium is the Supreme Court’s fault:

[In] late June, the Supreme Court signaled that this moratorium must expire at the end of July, effectively leaving many renters without protection.

In theory, most of these renters — and their landlords — should have received federal housing assistance. Over the course of the pandemic, Congress allocated $45 billion in rent relief to help people struggling financially due to Covid-19. But the state and local governments charged with distributing these funds have struggled to disburse them quickly.

That means lots of people are behind on their rent and now at risk of eviction. And, because a closely divided Congress is barely able to function even under ideal circumstances, it also appears to mean that congressional leaders are eager to shift blame for a possible eviction crisis elsewhere.

On Sunday, House Speaker Nancy Pelosi and her Democratic leadership team put out a perplexing statement. Although the Supreme Court bears primary responsibility for the end of the eviction moratorium, the words “Supreme Court” do not appear anywhere in the House Democratic leaders’ statement about the now-expired moratorium. Instead, the statement insists that “action is needed,” and then it falsely claims that an effort to “extend the moratorium” must “come from the Administration.”

[B]ut none of the figures implicated by the House leaders’ statement — Biden, Republican Senate Minority Leader Mitch McConnell, or filibuster defenders like Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) — bear the lion’s share of the blame for the moratorium expiring.

That blame should rest with five Republican appointees on the Supreme Court.

The Supreme Court is dismantling much of the Biden administration’s ability to govern

[In] Gundy v. United States (2019), however, four justices signaled that they intend to place potentially drastic new limits on Congress’s ability to delegate this sort of authority to federal agencies. The specific legal rule articulated by the conservative justices in Gundy is vague and difficult to parse, but it would give the Court’s right flank tremendous power to strike down regulations they simply don’t like. Justice Brett Kavanaugh, who did not hear the Gundy case because he was not a member of the Court when it was argued, later signaled that he would provide the key fifth vote to slash federal agencies’ power.

The full implications of the approach laid out by the conservative justices in Gundy remain unclear, but it is likely that the Court is going to strip Congress of much of its power to delegate regulatory power to agencies — while stripping many agencies of their existing authority in the process. At the very least, the conservative Court is likely to claim a veto power over any regulatory action taken by a federal agency.

The Court’s June 29 decision in Alabama Association of Realtors v. HHS, the case that effectively ended the federal eviction moratorium, should be understood as part of this broader effort to disempower federal agencies.

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[A] majority of the Court agreed with them that the CDC should not have this power. Four justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett — voted to immediately suspend the eviction moratorium. Justice Brett Kavanaugh, meanwhile, voted to give renters a very temporary reprieve.

At the time that Alabama Association of Realtors was decided, the moratorium was set to expire on July 31. Kavanaugh wrote that he agrees with the plaintiffs that “the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium,” but he also decided to let the moratorium expire of its own accord at the end of July — rather than suspending it immediately.

Nevertheless, Kavanaugh was quite clear that the Biden administration could not extend it into August. “In my view,” Kavanaugh wrote, “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”

So that’s four votes to cut off the moratorium right away, plus a fifth vote to cut it off after July 31. Five votes is a majority on the Supreme Court, so, if the Biden administration had attempted to extend the moratorium without seeking new legislation from Congress, it would have lost in court.

All of which is a long way of saying that Congress bears some blame for the expiration of the moratorium. If a majority of lawmakers in the House and a filibuster-proof majority in the Senate had agreed the moratorium needed to be extended, it could have passed legislation doing so, and Kavanaugh’s opinion suggests that he would have upheld that legislation.

But the lion’s share of the blame belongs to the Supreme Court. The reason why the Biden administration cannot extend the moratorium by invoking the CDC’s statutory authority is that the Court was quite clear that it would not permit such an extension.

Rank-and-file Democrats do not understand the threat posed by the Supreme Court

Given the Supreme Court’s role — and, particularly, the role of five Republican-appointed justices — in killing the eviction moratorium, Speaker Pelosi’s response to the moratorium’s demise is baffling. It’s also misleading.

Pelosi was simply wrong to claim that “the CDC has the power to extend the eviction moratorium.”

[M]oreover, Pelosi isn’t just wrong about what the CDC can do without Congress intervening, her political calculation also makes no sense. Why would a Democratic speaker blame a Democratic administration for creating a problem that was caused by five Republican appointees to the Supreme Court?

Nor were Pelosi and her fellow leaders the only Democratic lawmakers who seemed to shift blame away from the justices who caused a potential eviction crisis.

After CNN’s Jake Tapper asked Rep. Alexandria Ocasio-Cortez (D-NY), who often acts as a spokesperson for the party’s left flank, who was to blame for the moratorium expiring, she laid blame at the feet of “a handful of conservative Democrats” who didn’t want to vote for an extension. Ocasio-Cortez also singled out the White House for not asking Congress to move sooner and state governors for failing to distribute rent relief funds faster.

Other Democratic lawmakers echoed Pelosi’s misleading claim that the Biden administration should be blamed for not extending the moratorium on its own.

Meanwhile, while the White House’s statement explaining why the CDC would not extend the moratorium correctly noted that “the Supreme Court has made clear that this option is no longer available,” Biden has thus far resisted the kinds of reforms that could rein in an excessively ideological judiciary. Although he appointed a commission to explore potential reforms to the Supreme Court, this commission is strikingly devoid of members who have actually advocated Supreme Court reform in the past.

Congressional Democrats’ instinct — to treat the Court as if it were an uncontrollable force of nature and not a panel of nine political actors whose decisions can be criticized in the same way that they might criticize, say, Mitch McConnell — could have severe political consequences for the Democratic Party.

In just this past term alone, the Supreme Court gutted the Voting Rights Act, targeted labor unions, and expanded wealthy donors’ ability to secretly spend money to influence American politics. All of these decisions benefit the Republican Party at the expense of Democrats, and they could be a middle phase of a much bigger judicial assault on democracy.

And yet, according to a recent Gallup poll, 51 percent of Democrats approve of how the Supreme Court is doing its job, and this number is trending upward.

Something has gone seriously wrong with the Democratic Party’s approach to the Supreme Court. If a majority of Democrats approve of a Court that is literally dismantling our nation’s safeguards against racist voter suppression, then Democratic leaders have utterly failed to communicate the potential threat posed by a Court dominated by right-wing justices.

Pelosi and her fellow House leaders, in other words, do their party — and their country — no favors by laying blame for the expired eviction moratorium where it does not belong. This is a problem created by the Supreme Court. And Democrats need to understand that.

Now you do.

Democrats and civil rights activists are praising Rep. Cori Bush for leading the five-day protest. Some noted that by evoking her own experiences with housing insecurity, Bush forced fellow lawmakers to understand the realities of eviction. Cori Bush slept outside the Capitol to protest evictions. Democrats credited her for the renewed protections.

Yes, Cori Bush deserves credit for highlighting this problem and forcing action. But the action required needed to come from Congress, and that didn’t happen.

Absent Congressional action (in the Democrat’s budget reconciliation bill), the new CDC eviction moratorium is headed to the radicalized Republican Supreme Court again, where these justices may use the opportunity to do more than just reject the CDC eviction moratorium. The radicalized Republican justices are chomping at the bit to bring back the Lochner era, which has long been discredited as “the symbol, indeed the quintessence, of judicial usurpation of power” (- Robert Bork).

Will Rep. Cori Bush also be blamed if and when this happens?