A federal judge in Washington said the Biden administration last week "played the art" of extending a moratorium on evictions in areas hard hit by COVID-19, even after the Supreme Court said only Congress could do so.
At a hearing on Monday, US District Judge Dabney Friedrich expressed skepticism about the new ban, which should curb the spread of the Delta variant. Landlord groups have challenged the policy, arguing that the administration gave in to political pressure even though it knew the eviction freeze would fail in the courts.
A previous statewide moratorium that expired on July 31 had weathered a similar challenge by landlords after the Supreme Court left it intact in a June 5-4 ruling. But Judge Brett Kavanaugh, who cast the casting vote, argued at the time that any extension would require legislative action.
"Given the decision of the Supreme Court, it is really difficult to come to the conclusion that there is no certain amount of gimmick going on," said Friedrich.
The judge said she would decide "in the near future" on landlords' motion to lift the new moratorium that the Centers for Disease Control and Prevention would have until October 3rd.
Brett Shumate, an attorney for the landlords, told the judge at the hearing that the extension of the ban was "contrary to the judgment of the Supreme Court" and reflected "in bad faith" by the government.
"The CDC and the White House gave in to political pressure," Shumate said.
A Justice Department attorney Brian Netter argued that the spread of the Delta variant had made the moratorium an urgent public health priority. He also said that Kavanaugh's comments on a consensual opinion were not legally binding and that there was no way of knowing whether the four dissenting judges would come to the same conclusion given the changing nature of the pandemic.
"The Supreme Court has actually not issued a dispositive judgment," said Netter.
Following the Supreme Court decision, Congress failed to extend the moratorium and referred the matter back to the White House. Given Democratic political pressure, the CDC issued a new, restricted version of the ban that only applied to US states where the virus was most spreading.
President Joe Biden acknowledged the legal uncertainty of the extended moratorium and told reporters he was unsure whether a new ban would stand up in court.
Still, the government argued that a renewed freeze on evictions would give more time to increase vaccination rates and allow local governments to distribute emergency funds to people who have defaulted on rent. Congress has given nearly $ 47 billion in rental aid, but bureaucratic delays have prevented much of that aid from reaching those in need.
The day after the CDC announced the moratorium, two rental groups – the Alabama Association of Realtors and the Georgia Association of Realtors – challenged it, taking up Kavanaugh's argument in the Supreme Court case.
Moody's Analytics estimates that approximately 5.6 million tenants, or 13% of the total US total, were in arrears as of June. Tenants owed around $ 24 billion, according to Moody's, up from a peak of $ 52.6 billion in January.
While the new federal moratorium will cover about 90% of U.S. renters, some of the most populous cities and states have their own rules to prevent landlords from evicting renters during the pandemic.
New York, for example, has a nationwide moratorium that lasts until the end of August. And in California, a ban planned until September was challenged in court by a rental group.