Biden asks Supreme Court to leave eviction moratorium intact

The Biden administration on Monday asked the Supreme Court to leave intact an eviction freeze put in place amid the increased spread of the highly contagious delta variant of the coronavirus.

In a court filing, lawyers for the government urged the court to let stand the Centers for Disease Control and Prevention’s (CDC) eviction moratorium while the administration appeals a lower court ruling that found the measure unlawful. 

“The CDC has the statutory authority to halt evictions to prevent the spread of communicable disease,” the government argued in its brief, noting that the pandemic has worsened since the last time the justices confronted the eviction freeze. 

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The Supreme Court addressed an earlier version of the moratorium in June, with the justices voting 5-4 to reject a bid by a group of landlords to effectively end the policy. The minority vote comprised four of the court’s more conservative justices — Clarence ThomasClarence ThomasA politicized Supreme Court? That was the point Locked and Loaded: Supreme Court is ready for a showdown on the Second Amendment Two conservatives resign from Biden's Supreme Court commission MORE, Samuel AlitoSamuel AlitoA politicized Supreme Court? That was the point Locked and Loaded: Supreme Court is ready for a showdown on the Second Amendment The Hill's Morning Report - Presented by Altria - Jan. 6 panel flexes its muscle MORE, Neil GorsuchNeil GorsuchLocked and Loaded: Supreme Court is ready for a showdown on the Second Amendment Justices weigh request for information on CIA's post-9/11 torture program Supreme Court declines to hear dispute over DC representation in Congress MORE and Amy Coney BarrettAmy Coney BarrettA politicized Supreme Court? That was the point Solid majority believes Supreme Court rulings based more on politics than law  Locked and Loaded: Supreme Court is ready for a showdown on the Second Amendment MORE — who indicated they would have blocked the policy at that time. 

Justice Brett KavanaughBrett Michael KavanaughLocked and Loaded: Supreme Court is ready for a showdown on the Second Amendment Why Latinos need Supreme Court reform Feehery: A Republican Congress is needed to fight left's slide to autocracy MORE surprised some court watchers by joining the five-justice majority to deny the landlords’ request. However, Kavanaugh also said Congress would need to pass new legislation for the CDC to lawfully push the previous moratorium past its July 31 expiration date.

But Congress did not renew the policy. Instead, the Biden administration in early August acted unilaterally to renew the lapsed eviction freeze, which is now slated to run until early October.

The new moratorium covers only areas with higher infection rates, making it more targeted than the previous nationwide freeze. Still, the latest ban as of earlier this month applied to more than 90 percent of U.S. counties.

The CDC policy, originally enacted in September and subsequently extended several times, protects tenants who state under penalty of perjury that they are unable to pay rent and would face overcrowded conditions if evicted. 

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The moratorium has faced numerous court challenges, leading to a patchwork of interpretations nationwide on its lawfulness.

In May, a federal judge in Washington, D.C., found that the CDC’s eviction suspension was an illegal exercise of the agency’s authority. But the judge, Dabney Friedrich, a Trump appointee, agreed to delay enforcement of her decision, citing the risk to public health if evictions were allowed to proceed.

The challengers in this case, led by the Alabama Association of Realtors, are now asking the Supreme Court to give immediate effect to Friedrich’s ruling. Both Friedrich and the intermediate federal appeals court in D.C. have denied their request.