NEW CDC Eviction Moratorium Already Being Challenged in Court

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

Well, that didn’t take long. One of the plaintiffs in the earlier Supreme Court case, the Alabama Association of Realtors, joined by the Georgia  Association of Realtors, filed an emergency motion arguing that the Centers for Disease Control and Prevention’s order Tuesday barring evictions for most of the U.S. through Oct. 3 exceeds the CDC’s powers, according to a statement from the National Association of Realtors. The Realtors groups cited the Supreme Court decision in Alabama Association of Realtors v. Department of Health and Human Services, from June.

The Washington Post reports, Real estate, landlord groups file legal salvo to stop Biden administration’s new eviction moratorium:

Only one day after the Biden administration issued a new policy protecting renters from eviction, a series of real estate and landlord groups is trying to invalidate it — setting up another legal showdown over a moratorium that Democrats say is essential to keeping Americans in their homes.

The petition arrived Wednesday from groups including the Alabama Association of Realtors and its counterpart in Georgia, arguing the latest eviction order issued by the Centers for Disease Control and Prevention exceeds the agency’s authority. The group asked a federal judge in D.C. to halt the new protections, citing the district court’s prior ruling that found the government’s first eviction ban to be unlawful.

In filing the new legal salvo, the real estate, landlord and property-management groups at times cite the White House’s own, previous admissions that it did not have the authority to issue another ban. For days, the president’s top aides had insisted they needed Congress to draft legislation, only to cave amid pressure from Democrats as they struggled to pass a law.

The industry opponents even referenced comments from President Biden himself, who said on Tuesday in the hours before the new eviction policy was announced that it was at risk of being upended in the courts — an admission, real estate groups said, that the administration knew it had acted unlawfully.

If successful, the challenge threatens fresh uncertainty for perhaps millions of Americans who are behind on their monthly rents, facing the prospect of eviction or struggling to obtain federal aid.

Supreme Court reporter Ian Millhiser reports, Biden thinks his new eviction moratorium may be doomed. Here’s why he’s trying it anyway.

On Tuesday, President Joe Biden announced a new policy that even he appears to believe will be struck down by the Supreme Court.

[I]t’s a risky move. Although the Supreme Court rejected a request to halt the previous version of the eviction moratorium last June, four justices voted to grant this request immediately. And a fifth, Justice Brett Kavanaugh, indicated that he would strike down any attempt to extend the moratorium past July 31, unless Congress passed new legislation permitting such a moratorium.

The CDC’s new order, in other words, is likely to run into a judicial buzz saw. And, at his Tuesday press conference, Biden didn’t hide this reality.

Biden revealed that he’s “sought out constitutional scholars” to advise him on how to craft a new eviction moratorium that is “most likely to pass muster” in the courts, but the majority view among scholars, he said, is that any new moratorium pushed out by the CDC is likely to be doomed. The Justice Department’s lawyers will now face the thankless task of defending the CDC’s new order in court, after the sitting president suggested that this order is unlikely to survive contact with the judiciary.

But Biden also revealed why he’s willing to risk the ire of a conservative judiciary that’s eager to diminish his ability to govern. The eviction moratorium is not supposed to exist in a vacuum. Congress appropriated $45 billion in rent relief that was supposed to help tenants who are struggling financially due to Covid-19. In theory, the moratorium was extended to to keep these people from being evicted until they received relief checks that would allow them to pay the rent — rescuing renters and landlords in the process.

Many states have enacted onerous documentation requirements that can be difficult for struggling renters to meet. For the most part, the state and local governments tasked with distributing these funds don’t know who they should be targeting for aid, because they don’t know who owns rental properties and who lives in them. And they often don’t have the staff to process relief requests quickly. As a result, only about 6.5 percent of the $45 billion has actually been paid out, as of the end of June.

And so, Biden conceded in his Tuesday press conference that the courts very well may strike down the new CDC order. But he’s praying they won’t do so quickly. “By the time [the new moratorium] gets litigated,” Biden said, “it will probably give some additional time while we’re getting that $45 billion out to people who are, in fact, behind in the rent and don’t have the money.”

So the bet here is that this new litigation will take longer than the new October eviction moratorium deadline.

It’s a risky bet that the radicalized Republicans Supreme Court will not use this opportunity to “strip away even more of the federal government’s authority to fight pandemics. As a general rule, it’s a bad idea to take a particular action after five justices have already signaled that they think that action is illegal.”

But Biden appears to be betting that there’s enough humanity left in an increasingly right-wing judiciary that they will give him more time to save people’s homes.

Don’t ask me why he still has any faith in radical Republican Supreme Court justices.

[Another] challenge facing Biden is that he doesn’t just have to convince the Supreme Court to stay its hand for a little while longer. He also has to worry about the lower courts. Landlords and other parties opposing the moratorium brought a raft of lawsuits challenging the CDC’s previous order, and at least some of these cases were heard by Trump judges who embraced truly bizarre legal attacks on the moratorium.

If a landlord brings a challenge to the new CDC order, and if this case is heard by a similarly ideological federal judge, that judge could issue a nationwide order suspending the moratorium. Indeed, a sufficiently aggressive judge might do so as soon as today.

Assuming that no judge issues such a nationwide order (or that any order blocking the moratorium is stayed by a higher court), there is some reason to hope that the Supreme Court may sit on its hands before it issues an order blocking the new CDC order. (The Court might also uphold the new order, although that outcome is very unlikely.)

[The] Supreme Court’s conservative majority tends to be hostile toward federal agencies that impose obligations on businesses — including landlords. And that majority has already shrunk much of the government’s power to fight the pandemic, such as by granting expansive exemptions to churches and other places of worship that object to public health orders.

The biggest risk arising from the new CDC order, in other words, is that the Court could lash out at Biden for taking an action that the president knew was unlikely to survive contact with the judiciary — and that the justices might punish the president by diminishing his ability to control Covid-19 even more than they already have.

Ian Millhiser previously explained that The lapsed eviction moratorium is the Supreme Court’s fault.

Supreme Court reporter Mark Joseph Stern makes a similar argument. The Supreme Court Caused the Looming Eviction Disaster. Why Won’t Democrats Say So?

[In] the days before the eviction cliff, House Democrats attempted to extend the moratorium, but Republicans easily blockedtheir measure. Democratic lawmakers then spent the weekend arguing over who was to blame for the looming catastrophe.

Curiously, most Democrats chose not to focus on the primary culprit: the Supreme Court. In late June, five conservative justices signaled that they would not let the White House extend the eviction ban beyond July 31 absent further congressional authorization. These Republican-appointed justices set the terms of the debate, yet were largely absent from Democrats’ blame game. As a result, most vulnerable Americans will likely not understand they face homelessness in a pandemic because of SCOTUS. 

This strange dynamic is symptomatic of a deeper pathology in contemporary American politics: Democrats appear incapable of explaining how the Supreme Court stymies their own agenda—and the resulting confusion shields the court from criticism, consequences, and accountability when its decisions wreak havoc.

When House Speaker Nancy Pelosi urged Biden to extend the eviction moratorium on his own, she framed the issue as a matter of morality. But the president’s inaction was almost certainly a legal calculation.

* * *

Kavanaugh’s legal analysis in Alabama Association of Realtors v. Department of Health and Human Services, is dubious at best. (Maybe that’s why Chief Justice John Roberts didn’t join it, instead quietly voting to keep the moratorium in place.) Congress already gave the CDC expansive powers to fight the “spread of communicable diseases” between states. The agency acted pursuant to this law when it determined that mass evictions would force many Americans to live unhoused or crammed together in close quarters, transmitting the virus more widely. Crucially, when Congress chose to extend the moratorium, it simply passed a law extending the CDC’s own ban. By doing so, lawmakers chose “to embrace” the agency’s action and “expressly recognized” that it had the authority to issue the ban, in the words of the D.C. Circuit. It would not make a lick of sense for Congress to extend the CDC’s moratorium if it did not believe the CDC had authority to issue it.

Admittedly, it is difficult to convey this legal conflict to the public. But for the most part, Democrats didn’t even try [I’m doing it, Dude]. In a belated statement, the White House explained that it could not extend the moratorium by itself because of the Supreme Court. It did so in the most roundabout language imaginable, devoting just a single sentence to the root of the problem.

This refusal to criticize the court is nothing new for Democrats. While Trump spent four years bashing an array of judges, Democratic presidents take pains to avoid overtly condemning the federal judiciary. Their hesitation to take on the courts has created a political hazard: Democratic voters do not appear to understand that the Supreme Court routinely quashes their preferred policies. According to a new Gallup poll, 51 percent of Democrats approve of SCOTUS—the same approval rating that Republicans give the institution. Even though the court boasts a 6–3 conservative majority, more than half of Democrats think it’s doing a good job.

It’s easy to see why. In their fight for voting rights, Democrats rarely mention that many states can only pass new voter suppression laws because the Supreme Court gutted the Voting Rights Act in 2013. In their quest for greater health insurance coverage, they almost never mention that the Supreme Court kneecapped Obamacare’s Medicaid expansion, allowing states to opt out. Time and again, SCOTUS has hobbled Democratic priorities, making it harder to vote and access health care. The crackdown on racial minorities’ access to the ballot in Georgia and the sky-high rates of uninsured Americans in Texas are the predictable consequences of judicial interference with democratically enacted legislation. But unless you are a lawyer or way too online, you might assume that Democrats just can’t get the job done.

Why don’t more politicians highlight the court’s role in paring back progressive policies? Perhaps because, if they did, voters might demand that they do something about it. Most Democratic lawmakers still treat court reform like a taboo topic, and few have come out for expansion of the Supreme Court. If cautious, moderate Democrats blame SCOTUS for blowing up their plans, voters might ask them for their plan to fix SCOTUS. If they have no plan, voters might rightly see them as shirking responsibility. It is easier to act as if some ineffable force is stopping Democrats from enacting their platform than it is to confront the court.

So here we are again, watching politicians fight over an obstacle of the Supreme Court’s creation while largely pretending that it materialized out of thin air. The lines of accountability are hopelessly muddled, while the real culprits—Kavanaugh and his four colleagues—are spared from any consequence. If Democrats do not confront the courts, they will come to share the blame for the judiciary’s destruction of their own policies.

Finally, the fascist propagandists at Fox News are actually hyperventilating that President Joe Biden should be impeached because he kept millions of people from homelessness by extending the eviction moratorium. Fox News Calls For Biden To Be Impeached For Extending Eviction Moratorium:

Mark Levin goes on Hannity to call for the impeachment of Joe Biden because he extended the eviction moratorium. pic.twitter.com/d6WcloxDmU

— Sarah Reese Jones (@PoliticusSarah) August 5, 2021

To Fox News pundits, Biden deserves impeachment for saving 3.5 million Americans from homeless, but Donald Trump incited a violent insurrection that killed people, and it is a phony charge.

The right is looking for any reason that they can drum up to impeach President Biden, and if they take back the House majority in 2022, they will try to impeach Biden for any bogus reason so that they can dilute the impact of Trump’s two impeachments.

Things are getting delusional over at Fox News, but good luck selling America on impeaching a president who prevents people from being homeless.