Justice Department defends new eviction moratorium in court

The Justice Department defended the Biden administration’s new eviction moratorium in a court filing Friday, citing the Centers for Disease Control and Prevention’s finding that “the deteriorating public health situation necessitated a new invocation of its authority — and responsibility — to protect public health.”

The latest moratorium applies to localities with “substantial” or “high” COVID-19 spread, which now encompasses most of the country. Legal challenges were virtually guaranteed after the Supreme Court ruled the Biden administration could not extend a previous moratorium that expired at the end of July. 

“This past week, there has been much attention to the impending risk of mass evictions, which would put millions of tenants at risk of losing shelter,” Attorney General Merrick Garland said at a press conference Thursday. “Needless to say, the impact on individuals and families would be devastating. And as the CDC has made clear, the impact on public health would likewise be devastating, fueling the spread of Covid-19 infections in the affected communities.”

The Justice Department says that this new moratorium differs from the previous one in that it prohibits landlords from evicting residents in “only areas of high or substantial transmission.”

“Any injury to Plaintiffs caused by a temporary administrative stay is outweighed by the risk of illness and mortality if the moratorium targeting areas of high or substantial transmission is unnecessarily lifted at this moment when new cases are rapidly increasing due to the highly contagious Delta variant,” the filing concludes.

The Supreme Court previously decided that the Biden administration could not extend the previous moratorium by using an executive action. As the previous ban began to run out the clock, the White House and Congress called on one another to act. 

In June, the Supreme Court ruled in a 5-4 decision to allow the eviction ban to continue through the end of July. But one of the justices voting in the majority, Justice Brett Kavanaugh, strongly urged legislative action, noting that he would block any additional extensions unless there was “clear and specific congressional authorization.” 

President Biden recognized that legal challenges were sure to come, suggesting that a new moratorium would buy time for renters. 

“Any call for moratorium, based on the Supreme Court’s recent decision, is likely to face obstacles,” the president acknowledged Tuesday, shortly before the CDC officially announced the new moratorium. 

And he admitted he was not confident a new moratorium would be upheld by the courts. 

“I’ve sought out constitutional scholars to determine what is the best possibility that would come from executive action or the CDC’S judgment – what could they do that would most likely to pass muster constitutionally,” the president said Tuesday. “The bulk of the constitutional scholarship says it’s not likely to pass constitutional muster, number one, but there are several key scholars who think that it may, and it’s worth the effort.”