FAQ on Biden’s Extension of the Eviction Moratorium

By William Yeatman of Cato.

"How did the eviction moratorium come about? In early 2020, as part of the first major pandemic stimulus, Congress passed a 120-day eviction moratorium for rental properties receiving federal assistance. After the moratorium expired, President Trump announced that “unlike the Congress, I cannot sit idly and refuse to assist vulnerable Americans in need.” So he ordered his administration to “do all that it can to help vulnerable populations stay in their homes.” Accordingly, the Center for Disease Control (CDC) promulgated an eviction moratorium more restrictive than the one enacted by Congress. Whereas Congress’s moratorium applied only to certain federally backed rental properties, the CDC’s applied to all rental properties nationwide.

What’s the economic fallout from the eviction moratorium? The CDC’s eviction moratorium shifts the pandemic’s financial burdens from the nation’s 30 to 40 million renters to its 10 to 11 million landlords— most of whom are individuals and small businesses. In litigation documents, landlord associations claim they’re losing between $13.8 and $19 billion each month in unpaid rent. In late May, the Urban Institute estimated the amount of back rent then-owed to be about $50 billion.

What's the legal basis for the eviction moratorium? As a legal basis or the moratorium, the CDC adopted an expansive interpretation of a vague provision in a rarely used statute from 1944, the Public Health Service Act. Specifically, Section 361 authorizes the agency to mitigate the spread of disease by requiring “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.” (emphasis added). On its face, Section 361 plainly pertains to specific restrictions on property, such as inspections, fumigation, and the like. But the Trump administration zeroed in on the phrase “other measures,” which, according to the CDC, confers limitless regulatory power over the housing market, so long as the agency pays lip service to fighting the pandemic.

How did lawmakers in the GOP-Controlled 116th Congress react to Trump’s eviction moratorium? You’d think lawmakers would be outraged, right? After all, Trump expressly cited congressional inaction as the justification for presidential lawmaking, which his administration achieved through an impossibly broad interpretation of the CDC’s existing authority. Simply put, the first eviction moratorium was a blatant end-run around Congress’s constitutional prerogatives. But there was no congressional outcry. To the contrary, the 116th Congress condoned the president’s power grab. The CDC Order was slated to expire on December 31, 2020, but Congress extended the measure through January 21, 2021 (as part of the Consolidated Appropriations Act). Alas, it’s impossible to know what Congress was thinking because the Consolidated Appropriations Act, like all the COVID stimulus bills, was drafted behind closed doors by House and Senate leaders without any of the normal deliberation that should go into massive legislation.

On assuming the Oval Office, what did Biden do about the eviction moratorium? On Biden’s first day in office, his administration extended the moratorium by two months. Since then, the CDC extended it twice more (excluding this week’s flip flop) through July 31st.

How is the eviction moratorium faring in court? Landlord groups filed (at least) nine civil actions challenging the CDC eviction order on various statutory and constitutional grounds. These cases are at various procedural postures, but the landlords have been winning most of the time (For more discussion on these cases, see this Volokh Conspiracy post by Ilya Somin). One such suit, brought by realtors from Alabama, reached the Supreme Court, where a majority of Justices indicated that the Biden administration doesn't have the authority to unilaterally impose an eviction moratorium.

So, the Supreme Court already has weighed in on the eviction moratorium? It’s complicated. The Court did not set forth a definitive legal holding. Indeed, a majority of Justices actually voted in a “pro-moratorium” manner by declining to overturn the D.C. Circuit’s refusal to pause the moratorium while the government appealed the district court’s decision. (Like I said, it’s complicated). However, four Justices (Alito, Gorsuch, Thomas, & Barrett) would’ve vacated the D.C. Circuit’s decision and thereby paused the moratorium (while the government appealed the district court's decision). And although Justice Kavanaugh voted to leave the D.C. Circuit’s decision in place, he wrote that he believed the moratorium exceeds the CDC’s statutory authority, and he further explained that he voted as he did only because the moratorium was set to expire in a matter of days (on July 31st). The upshot is that the Court sent a strong--but not definitive--directive that only Congress can extend the eviction moratorium.

How did the Biden administration react to the Supreme Court’s signals on the eviction moratorium? In all likelihood, the Supreme Court’s decision was a lifeline for the Biden administration. At some point, the eviction moratorium must’ve become a political headache—especially for a first term president who might run for reelection. There is no nefarious “Big Landlord” to scapegoat; rather, “41 percent of all rental units are owned by individual investors” or “mom and pop landlords,” according to the Department of Housing and Urban Development. That is, landlords are largely the “little guy” in droves, which is a potent political force. Almost a year into the moratorium, this constituency is out scores of billions of dollars. I suspect this political dynamic is why the Biden administration leaned into the Supreme Court’s signals. Last Thursday, the White House press shop explained to reporters that the Supreme Court had made it “clear” that the eviction moratorium could not be extended beyond July 31st. In fact, the Supreme Court wasn’t clear, as I note above. I suspect that the administration exaggerated the Court’s message in order to avoid having to make a lose-lose decision on extending the moratorium. Simply put, the administration thought it could pass the buck to the “conservative” Supreme Court.

How did Congress respond to the Supreme Court’s signals on the eviction moratorium? Lawmakers in Congress faced the same difficult politics that I discuss in the previous paragraph—with every passing month, the eviction moratorium became a bigger problem as millions of mom & pop landlords continued to take it on the chin. This likely explains why congressional leaders ignored the matter in the weeks after the Supreme Court indicated that only Congress could extend the eviction moratorium. Last Friday, Speaker Pelosi gave a bizarre press conference in which she claimed that “we only learned of this yesterday,” which is ludicrous. The reason that Pelosi dissembled was to obfuscate the fact that she didn’t have the votes in her own caucus—earlier that Friday, moderate Democrats had balked at the idea of extending the moratorium. At this point, progressives started calling moderate Democrats “cowards,” and Speaker Pelosi pivoted to blaming the White House for inaction and demanding that the Biden administration extend the moratorium.

How did the Biden administration flip-flop on the eviction moratorium? Two days before the moratorium was set to expire, White House press secretary Jen Psaki told reporters that the Supreme Court had been “clear” that only Congress could provide relief to renters. Yet two days after the moratorium expired (August 2nd), Psaki seemed less “clear” on the matter. While she conceded that the administration “has been unable to find legal authority” to extend the moratorium, she nonetheless announced that “our team is redoubling efforts to identify all available legal authorities to provide necessary protections.” One day later, the administration “found” the legal authority, and the CDC announced that it would extend the eviction moratorium. In speaking to reporters, President Biden admitted that the extension order was on shaky legal ground, but he said it was worth it because “by the time it gets litigated, it will probably give some additional time.” Got that? The president conceded that the extension is a legal sleight of hand to buy time. As Charles Cooke observed at NRO, Biden’s avowal flies in the face of his oath to faithfully execute the law.

Why did the Biden administration flip-flop? As I explain above, the Biden administration preferred to blame the Supreme Court for ending the eviction moratorium; this way, the president could avoid accountability for a tough political decision. Biden’s big problem was that congressional leaders had the same idea. They, too, were intent on avoiding accountability for a difficult political decision. So, the political branches passed the buck back and forth between themselves like a game of hot potato. Then progressive politicians started grandstanding, and the hot potato got hotter. Ultimately, the Biden team lost out because (I surmise) the administration figured to absorb the lion’s share of blame for inaction. Simply put, Biden was browbeaten into flip-flopping by congressional leaders who, in turn, were goaded by a slim progressive minority in the House Democrat caucus. It all happened in a matter of days—progressives only began agitating in earnest late last week.

Takeaways from this debacle:

• In a prior post, I commended President Biden for restraint when it comes to presidential lawmaking. I take it back. This eviction moratorium fiasco is as cynical a use of presidential authority as possible--it's as bad as Trump declaring a bogus “national emergency” at the border, or President Obama using his phone and pen to achieve climate policy that had been rejected by Congress. In all three situations, presidents pointed to congressional inaction to justify executive power grabs. For all three, presidential administrations “found” vast executive authority through creative interpretations of long-extant statutes. This unfortunate trend is making a mockery of our constitutional system of government, in which lawmakers are supposed to make law. Months ago, I’d held out hope that Biden would resist these sorts of machinations, due to his long career in the Senate. I was wrong.
• Where is Congress’s self-respect? When the president makes law, Congress is harmed as an institution. Here, the Republican-led 116th Congress condoned President Trump’s unilateral (and legally preposterous) eviction moratorium (by legislatively extending the moratorium's deadline). Then the Democrat-controlled 117th Congress demanded that President Biden unilaterally extend the deadline. From a separation of powers perspective, this is pathetic: Congress is abetting the presidents efforts to undermine Congress. In prior posts, I’ve written about how and why our contemporary legislature has sidelined itself in the constitutional competition among the separated powers. The short answer is that party affiliation trumps institutional pride for the modern lawmaker.
• In a cosmic irony, this norm-busting exercise of big government was precipitated by a failure of big government. Last December, Congress appropriated $25 billion in assistance to renters in arrears. In March, lawmakers allocated another $21.5 billion. If these subsidies had been disbursed, then the taxpayer would assume liability for unpaid rents, and the president could've avoided having to decide between renters and landlords. But only a small fraction of these funds—about $3 billion—has made it out the door, even though state and federal governments have had about eight months to operate the program. Such a slow pace may be good enough for government work, but it put the president in a political pickle."