DC Federal Court Upholds Biden’s Eviction Moratorium, But Expects Dim Future for Ban

US Associate Supreme Court Justice Brett Kavanaugh wrote in June he believed the eviction moratorium could only be legally extended by legislative action, but the Democratic-controlled Congress went into recess without passing such a bill, leaving it up to the White House to keep more than 11 million American renters in their homes.

The nationwide eviction ban put in place by the US Centers for Disease Control and Prevention (CDC) has been allowed to stand by a DC federal court, but only because it was found to be an extension of the previous ban, which the Biden administration had denied.

Judge Dabney Friedrich of the US District Court for the District of Columbia said in a Friday ruling that “the court’s hands are tied” by a previous order issued by the US Court of Appeals for the District of Columbia Circuit in early June, which barred the eviction moratorium from being preliminarily enjoined.

That ruling barred her from further action because Judge Friedrich argued that the August 3 order is an extension of the previous moratorium, which her court previously vacated in May, and not a new document, as the Biden administration had attempted to argue. While the old order was allowed to expire on July 31, the renewal four days later was more “targeted,” including only areas with “substantial” or “high” rates of community spread of COVID-19.

However, as Judge Friedrich noted in her ruling, that presently includes more than 90% of counties in the United States, due to the exploding numbers of cases driven by the ultra-transmissive Delta variant of the virus. According to CDC data, on Wednesday the seven-day average for daily new cases in the US was 114,190 – the highest it’s been since February 7.

Nonetheless, the basis of her May order vacating the moratorium was based on the CDC having insufficient statutory authority to order such a ban, even if in the interests of slowing community spread of COVID-19, as the CDC claimed.

“The same issue presented a second time in the same case in the same court should lead to the same result,” she noted, expressing her doubts that the Biden administration could find sufficient legal basis to avoid a repeat of the June 29 ruling by the US Supreme Court, which upheld the May strike-down.

The plaintiffs, a group of Georgia and Alabama landlords, are expected to appeal the decision.

The social lockdowns adopted early in the COVID-19 pandemic successfully blunted the virus’ spread, but they also brought economic chaos as capitalist economies around the globe struggled under the weight of sudden massive interruptions of manufacturing and commerce, throwing millions into unemployment. Facing a wave of evictions, the federal government and many US state governments imposed bans on evicting tenants who’d fallen behind on their rent, which at its height protected nearly 40 million Americans, according to the Aspen Institute.

While the reopening of the economy in the spring of 2021 created millions of new jobs and put many people back to work, millions more than before the pandemic are on unemployment and a similar number of people remain several months behind on rent to the winter of 2020-2021, when the outbreak was at its worst in the US and lockdowns the most extensive. An estimated 15 million Americans are still at risk of being evicted if the moratorium is lifted.

The ban’s reinstatement after a four-day lapse is due in large part to a protest outside the US Capitol Building led by Rep. Cori Bush (D-MO), which turned the order’s expiration into an embarrassing public spectacle for the government. While Justice Kavanaugh hinted he would rule against the moratorium in the future unless it was authorized by legislative action, Congress went into its seven-week summer recess on July 29 without having attempted to pass such a bill, with House Speaker Nancy Pelosi (D-CA) insisting only the White House could renew the act.

Another moratorium was also allowed to expire on July 31 that has not been renewed, which protected homeowners with mortgages backed by federal lenders who were behind on their mortgage payments from being foreclosed on. While the Consumer Finance Protection Bureau implemented several mitigating measures to give qualifying homeowners additional time and flexibility to catch up on their payments, there has been no attempt to renew the foreclosure ban.