Biden administration walks legal tightrope with new eviction ban, drawing ire from housing groups

[Editor’s Note: This is a developing story and will be continually updated.]

For now, the new, “temporary” moratorium on evictions imposed by the Centers for Disease Control (CDC) until Oct. 3 stands — although the way forward is likely littered with hurdles, with even President Joe Biden admitting the probability of legal challenges.

The latest eviction ban, which is not an extension of the previous CDC-issued moratorium that expired on July 31, is more targeted than the previous one, applying to “counties experiencing substantial and high levels of community transmission levels” of COVID-19. Per the text of the order, it was issued “in order to respond to recent, unexpected developments in the trajectory of the COVID-19 pandemic, including the rise of the Delta variant.”

The order goes on to say that the rapid spread of COVID “likely would be exacerbated by mass evictions,” precipitating the need for a prolonged stay on evictions.

The ban was announced Tuesday by the Biden administration, after admitting earlier in the day that any call for a new federally enacted eviction moratorium “is likely to face obstacles.” According to various outlets, Gene Sperling, who oversees the administration’s spending of the coronavirus relief funds, told reporters earlier in the week that the president “quadruple-checked” whether he had legal authority to extend the previous, farther-reaching moratorium but was ultimately unsuccessful. But with the recent and ongoing surge of the highly communicable Delta variant, it appears the White House and the CDC have decided to push forward and try their luck.

President Biden indicated on Tuesday that he referred to constitutional scholars to determine what CDC action, if any, could pass constitutional muster. Per Biden, most whom the White House consulted said that additional CDC action would not hold up in court, although he added that some “key scholars … think that it may, and it’s worth the effort.”

Even if the ban is challenged legally, Biden added that it will still give additional time for state and municipal governments to distribute federal relief money to renters to help keep them in their homes.

Many in the housing industry have resisted any further moratoria on evictions, and this week’s action by the White House has drawn the ire of several trade groups. The National Multifamily Housing Council (NMHC), for example, said the move unduly saddles housing providers financially and noted that a federal rental assistance program has been created, putting the onus of disbursing funds in a timely fashion to states and cities.

“This move does nothing to speed the delivery of real solutions for America’s renters and ignores the unsustainable and unfair economic burden placed on millions of housing providers— jeopardizing their financial stability and threatening the loss of affordable housing stock nationwide,” said the NMHC in a statement.

“The $4 trillion in economic relief provided by the federal government, including expanded unemployment benefits, stimulus payments and support for American businesses has stabilized the economy and allowed much of the country to resume normal economic activity. And where the recovery has been slower and for those renters who continue to face financial struggles, the industry continues to work with residents through payment plans, deferred payments or other solutions.

“It is unacceptable that some localities continue to delay distribution of benefits, and it is unacceptable to continue to ask housing providers to carry the financial burden of this pandemic.


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