On Tuesday, President Joe Biden announced a new policy that even he seems to believe will be put down by the Supreme Court.
Biden spoke at a press conference Tuesday afternoon just before the Centers for Disease Control and Prevention issued a new order moratorium on certain evictions. The CDC's new order is essentially similar to an earlier eviction moratorium that expired in late July, with one exception.
Both the old and the new moratorium apply to people who are in financial need and cannot pay their rent. However, the new regulation only applies to people who live in a county that has "significant or high transmission rates in the community" of Covid-19.
It's a risky move. Although the Supreme Court rejected a motion to lift the previous version of the eviction moratorium last June, four judges voted to grant that motion immediately. And a fifth, Judge Brett Kavanaugh, indicated that he would push back any attempt to extend the moratorium beyond July 31 unless Congress passes new law allowing such a moratorium.
In other words, the CDC's new order is likely to run into a judicial buzz saw. And at his press conference on Tuesday, Biden did not hide that reality.
Biden announced that he had "sought constitutional scholars" to advise him on drafting a new eviction moratorium that would be "most likely to pass in court," but the majority of scholars, he said, is that any new moratorium is being pushed by the CDC will likely be doomed. Justice Department attorneys are now faced with the thankless task of defending the CDC's new order in court after the incumbent president suggested that the order is unlikely to survive contact with the judiciary.
But Biden also revealed why he is willing to risk the wrath of a conservative judiciary eager to curtail his ability to govern. The eviction moratorium should not exist in a vacuum. Congress approved $ 45 billion in lease relief designed to help tenants struggling financially due to Covid-19. In theory, the moratorium has been extended to prevent these people from being evicted until they receive relief checks that allow them to pay the rent – thereby saving tenants and landlords.
In practice, however, it is a logistical nightmare to identify the specific people who should receive a rent reduction. Many states have onerous documentation requirements that can be difficult for tenants in trouble to meet. The state and local governments charged with distributing this money usually do not know who to direct the aid to because they do not know who owns the rental property and who lives in it. And they often don't have the staff to deal with requests for help quickly. As a result, only about 6.5 percent of the $ 45 billion was actually paid out at the end of June.
And so Biden admitted in his press conference on Tuesday that the courts could very well reject the new CDC regulation. But he prays they won't do it anytime soon. "By the time (the new moratorium) is applied," said Biden, "there will probably be a little more time while we pay out those $ 45 billion to people who are actually behind on their rent and who don't have the money."
It's a dangerous game that could easily end in a vengeful Supreme Court that deprives the federal government of even more powers to fight pandemics. In general, it is a bad idea to take a particular measure after five judges have already signaled that they think the measure is illegal.
But Biden seems to be betting that there is enough humanity left in an increasingly right-wing justice system to give him more time to save people's homes.
How we got to this point
Biden faced both a political and a legal problem after the CDC's previous moratorium expired in late July.
The political problem is that Congress does not seem to have the votes to pass a new moratorium, as Kavanaugh said it had to. But key members of Congress, including spokeswoman Nancy Pelosi, blamed the Biden government for letting the eviction moratorium expire – even after the Supreme Court warned the government not to extend it.
"Action is needed and it must come from the government," Pelosi and her Democratic House leaders said in a statement released on Sunday. "That is why the leadership of the House of Representatives is calling on the government to immediately extend the moratorium."
Meanwhile, Rep. Cori Bush (D-MO) held a three-day vigil on the Capitol steps and literally slept outside in the rain to pressure Congress and the government to extend the moratorium.
Despite all this pressure, however, the Biden administration rightly recognized that it had an even tougher legal problem: a new CDC regulation would likely not survive contact with the Supreme Court. "President Biden would have strongly supported a decision by the CDC to extend this eviction moratorium to protect tenants in this moment of heightened vulnerability," the White House said in a statement last Thursday, but "unfortunately the Supreme Court made this clear." This option is no longer available."
Although the new moratorium differs from the old one in that it only applies in areas with significant Covid-19 prevalence, this distinction is unlikely to convince any of the five judges who believe the earlier version of the moratorium is illegal. Kavanaugh, the least conservative of these five judges, wrote that "the Centers for Disease Control and Prevention has exceeded their existing legal powers by issuing a nationwide eviction moratorium," adding that "a clear and specific permit of Congress (through new laws) would be required ”. that the CDC will extend the moratorium beyond July 31st. "
An additional challenge for Biden is that he doesn't just have to convince the Supreme Court to hold his hand for a while longer. He also has to take care of the lower courts. Landlords and other parties opposed to the moratorium brought a number of lawsuits questioning the CDC's previous order, and at least some of those cases were heard by Trump judges who welcomed truly bizarre legal attacks on the moratorium.
If a landlord challenges the new CDC regulation and this case is tried by a similarly ideological federal judge, that judge could issue a statewide order to suspend the moratorium. In fact, a sufficiently aggressive judge could do so today.
Assuming that no judge is making such a statewide order (or that an order blocking the moratorium is suspended by a higher court), there is reason to hope that the Supreme Court can sit on its hands before issuing one Issues an order blocking the new CDC order. (The Court of Justice could also uphold the new order, although that outcome is very unlikely.)
In Alabama Association of Realtors v. HHS, contesting the previous CDC ruling that reached the Supreme Court, plaintiffs initially asked judges on June 3 to block the eviction moratorium. However, the Supreme Court did not resolve the case until June 29. Perhaps the court will postpone a similar ruling when faced with a fresh challenge to the new CDC regulation.
Kavanaugh's opinion in the Alabama Association of Realtors also suggests that he may have some compassion for renters waiting for the government to process their rent relief. Although his opinion was brief, he said he would continue the moratorium until the end of July “because the CDC plans to end the moratorium in just a few weeks, on July 31, and because those few weeks are additional and more orderly distribution the rental aid fund approved by Congress. "
However, the conservative majority in the court tends to be hostile to federal agencies that impose obligations on businesses, including landlords. And that majority has already shrunk much of the government's power to fight the pandemic, for example by granting sweeping exemptions to churches and other places of worship protesting public health orders.
In other words, the biggest risk posed by the new CDC regulation is that the court could attack Biden for a measure that the President knew would not survive contact with the judiciary – and that the Judges could punish the president by reducing his ability to control Covid-19 even better than they already have.