Judge mulls blocking Biden’s new eviction ban

A federal judge suggested Monday that the Biden administration was engaging in legal “gamesmanship” in order to resurrect a pandemic-related eviction ban despite an indication from the Supreme Court that the measure was unlawful.

U.S. District Court Judge Dabney Friedrich made the pointed remark at a hearing on a request by real estate brokers and landlords to block the new policy the Centers for Disease Control and Prevention rolled out last week. President Joe Biden let a previous eviction moratorium expire at the end of July but revived the restrictions Tuesday after he came under intense pressure from liberal lawmakers and activists.

“Given that this order is almost identical to the CDC’s earlier order, as to the effect of it, it’s really hard … to conclude that there’s not a degree of gamesmanship going on,” Friedrich said.

Brett Shumate, a lawyer for Alabama and Georgia Realtors challenging the anti-eviction measure, told Friedrich that the rejiggering of the ban last week amounted to an effort by the Biden administration to defy rulings from federal courts, including the Supreme Court. The new moratorium, which expires Oct. 3, applies to areas with high levels of Covid-19 transmission — currently about 80 percent of counties.

“The court should not tolerate the government getting away with it,” Shumate said.

However, the judge seemed skeptical of Shumate’s arguments that an opinion from Justice Brett Kavanaugh coupled with the votes of other justices in an emergency ruling the Supreme Court issued in June amounted to definitive guidance from the high court about how to handle the Biden administration’s new iteration of the ban.

Friedrich ruled in May that the earlier version of the eviction ban exceeded the CDC’s authority, but she agreed to stay her ruling while the Biden administration appealed. On June 29, the Supreme Court voted 5-4 to decline the Realtors’ request to have her ruling take effect and block the moratorium.

At the hearing Monday, Friedrich — an appointee of former President Donald Trump — noted that while Kavanaugh indicated he was inclined to block any extension of the previous ban beyond July 31, the four justices who voted to block the eviction moratorium never explained their positions.

“None of those justices gave their reasoning, so we don’t know exactly what they thought,” Friedrich said.

Justice Department attorney Brian Netter cautioned that the D.C. Circuit Court of Appeals has specifically instructed judges not to engage in that sort of math when interpreting Supreme Court opinions.

“We don’t yet know how the Supreme Court will weigh in,” Netter said, prompting Shumate to recount the White House’s public comments saying the high court’s June 29 decision foreclosed the option of the executive branch extending the ban on its own.

The Biden administration cited the Supreme Court’s decision when it let the original ban imposed by the CDC in September lapse on July 31 and urged Congress to pass legislation extending it. White House officials repeated that explanation for days, with senior adviser Gene Sperling telling reporters that the administration had “double, triple, quadruple checked” its options but that the CDC could not find the legal authority.

Even after the administration reversed course under intense pressure from outraged Democrats, Biden himself cast doubt on the ban’s legality, saying “any call for a moratorium based on the Supreme Court’s recent decision is likely to face obstacles.”

The case turns on whether a 1944 public health law granting the Department of Health and Human Services certain powers to prevent the spread of a communicable disease across state lines gives the CDC the authority to block evictions.

On Monday, the government argued that the surge in Covid-19 cases in recent weeks thanks to the highly transmissible Delta variant meant that the circumstances had changed since the high court’s decision was released on June 29.

“We’re here today because of the Delta variant, because cases have increased seven-fold since the end of June” when the Supreme Court weighed in, Netter said. “We’re in a new chapter of this pandemic.”