Federal Eviction Ban Could be Headed Back to Supreme Court
A landlord stands outside one of his rental properties, Thursday, Aug. 12, 2021, in the Queens borough of New York. AP Photo/John Minchillo
A federal appeals court has allowed the moratorium to stand. Realtors challenging it say they'll ask the high court to weigh in.
A federal appeals court on Friday allowed the Biden administration's extended moratorium on residential evictions to remain in effect. But realtors fighting the ban say they will push to have it again reviewed by the Supreme Court, where the policy likely faces long odds.
The U.S. Centers for Disease Control and Prevention first established the moratorium last September after a congressionally approved ban expired. It was adopted to help ensure that renters struggling to pay rent due to the Covid-19 pandemic were able to stay in their homes.
The legal dispute over the policy has already made it to the Supreme Court once. The high court in a 5-4 ruling in June allowed it to stand. But Justice Brett Kavanaugh cast a pivotal vote for the majority with the expectation that the ban would soon expire.
That didn't happen though. As days after the ban lapsed at the end of July, the CDC on Aug. 3 again extended it, until Oct. 3—although the latest iteration only applies to areas especially hard hit by the spread of the virus, whereas earlier versions were nationwide in scope.
"We are disappointed in today’s ruling, but the plaintiffs will continue fighting on behalf of America’s mom-and-pop housing providers and plan to file an emergency motion to the Supreme Court immediately," Patrick Newton, a spokesperson for the National Association of Realtors said in an emailed statement.
Among the plaintiffs who've brought the case are realtors association chapters based in Alabama and Georgia.
Friday's one-page order from a three-judge panel of the U.S. Court of Appeal for the District of Columbia Circuit didn't delve far into the details of case. It hinged more on procedural issues with how the dispute has moved through the courts, as opposed to the ban's merits.
President Biden has acknowledged that the eviction ban is on shaky legal ground, but has suggested the court wrangling over it could buy more time to get federal rental aid distributed.
"The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster," Biden said earlier this month. "But, at a minimum, by the time it gets litigated, it will probably give some additional time while we’re getting that $45 billion out to people."
When the battle over the ban was before the Supreme Court earlier this summer, Kavanaugh said that, in his view, clear and specific congressional authorization via new legislation would be needed to extend it past a July 31 expiration date.
But an effort to do so failed in U.S. House.
The Struggle to Deliver Rent Aid
The court fight over the moratorium has played out as state and local governments have struggled to deliver roughly $46.5 billion in federal aid to help people pay rent. In some cases, governments have had to create programs from scratch to dole out the cash, which was allocated since December under two different coronavirus relief laws.
In late July, the nonprofit Surgo Ventures estimated that about 6.2 million households were behind on rent. While the eviction ban has shielded renters from losing their housing, it does nothing to help them cover back rent payments.
Landlords, particularly individuals and smaller operators, say they're hurting, too, after more than a year of fallout from the pandemic and the missed and delayed rent payments from tenants during that time.
"Moving forward, federal and state governments should be focusing all energy on the swift distribution of nearly $50 billion in rental assistance available," said Newton, with the association of realtors.
Bill Lucia is a senior editor for Route Fifty and is based in Olympia, Washington.
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