The difficulty with enacting “temporary, emergency” moratoriums on unpopular but necessary legal processes is not starting them, but ending them. In my long career with New York City’s planning department, the agency continually resisted demands for moratoriums on types of construction some politicians saw as problematic. The bureaucrats knew that once the moratorium went into effect it would be extended, again and again. Only the courts would be able to remove it.
This hard lesson has now been learned by the Biden administration, which inherited from its predecessor a national moratorium on tenant evictions in the midst of the coronavirus pandemic. The Centers for Disease Control moratorium expired on July 31, after a majority of the Supreme Court justices had expressed doubts about its constitutionality. Under enormous pressure from the Democratic party’s left wing, the administration has now issued a new extension of the moratorium to October 3. It’s widely thought likely to be overturned in the courts, even by the Biden administration itself.
The eviction moratorium has its origins in good intentions and valid concerns. When it began, in September 2020, the U.S. unemployment rate was still at recessionary levels—8.4 percent that August—and the pandemic was raging. The CDC argued that the moratorium was justified under its public health authority:
Eviction moratoria facilitate self-isolation by people who become ill or who are at risk for severe illness from COVID-19 due to an underlying medical condition. They also allow State and local authorities to more easily implement stay-at-home and social distancing directives to mitigate the community spread of COVID-19. Furthermore, housing stability helps protect public health because homelessness increases the likelihood of individuals moving into congregate settings, such as homeless shelters, which then puts individuals at higher risk to COVID-19.
That was originally intended to expire on Dec. 31, but during that period, the daily trend in U.S. cases skyrocketed. In December, Congress extended the Federal eviction moratorium to the end of January of 2021. The incoming Biden administration, relying again on CDC’s public health authority, further extended the moratorium first to March 31, then to June 30 and, finally, to July 31.
Congress understood that an eviction moratorium was a problematic means to deal with the economic fallout from the pandemic. Renters would build up large balances owed that they would find difficult to repay, while landlords would be deprived of income they need to maintain buildings and pay mortgage debt. To forestall mass eviction in a fairer manner, Congress has approved over $46 billion in emergency rental assistance. However, the states have been painfully slow in distributing these funds.
With the eviction moratorium looking increasingly indefinite, landlord interests began an effort to have the moratorium overturned in the courts. On May 5, U.S. District Court Judge Dabney L. Friedrich ruled that the CDC lacked legal authority under the Public Health Service Act to impose a nationwide eviction moratorium. Judge Friedrich stayed her decision pending appeal by the government. On June 2, the U.S. Court of Appeals for the District of Columbia denied a motion to vacate the stay, and on June 29, so did the Supreme Court, by a vote of 5 to 4. The four Justices that voted to vacate the stay—Thomas, Alito, Gorsuch and Barrett—issued no opinion, but gave a strong signal that they agree with Judge Friedrich. A fifth Justice, Kavanaugh, concurred with the four Justices that voted to uphold the stay, but gave a clear statement of his support for overturning the moratorium:
I agree with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium… Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application to vacate the District Court’s stay of its order… In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.
That’s where matters stood when the eviction moratorium expired on July 31. The administration first let the moratorium expire, claiming lack of legal authority, while Congress failed to act. Then, the administration reversed its position under pressure from its left-wing allies, to wide skepticism about its legality. To distinguish its new position from the one that failed to convince the district court, the CDC has limited the applicability of the new moratorium to counties that are experiencing “substantial” or “high” levels of community transmission. However, as of Aug. 3, the CDC’s data tracker indicated that the vast majority of U.S. counties were covered. Moreover, the CDC’s public health rationale is undercut by the absence of other measures by state and local governments, such as stay-at-home directives and social distancing, that the original moratorium was ostensibly enacted to support. The economy is improving, and vaccines are widely available. Tenant hardship should be diminishing.
Biden’s people aren’t fools, and the extension of the moratorium can best be seen as a political gambit to keep the left on side for future legislative battles. The left is perhaps happy to chalk up a symbolic win while placing the onus on the Supreme Court to invalidate the eviction ban.
However, this sort of artful scheming is perhaps not without its costs. When I worked for New York City, the city’s lawyers several times shot down politicians’ wish to enact proposals that pleased constituents but flouted the law. Their credibility, they said, was an important asset. Once judges got the idea that the city’s legal positions were not well-considered, but merely cynical, even the good cases were endangered. Such arguments seem today like quaint relics of a bygone era.