New Eviction Ban Faces First Legal Challenge

Couple Waiting at a Doorstep With Suitcases

Kathrin Ziegler

A group of landlords and realtors have filed the first legal challenge to the federal government’s latest ban on removing renters from their homes.

Key Takeaways

  • A group of landlords and realtors filed an emergency motion in district court Wednesday, seeking to stop a new government order that bans evictions until Oct. 3.
  • The new policy forbids property owners from removing tenants from their homes in counties that the CDC says are experiencing “substantial” or “high” rates of COVID-19 transmission.
  • The landlords say the government doesn’t have the authority to issue such a moratorium.
  • The new ban represents a change of course for the Biden administration, which previously said it could not extend an original eviction ban beyond the end of July.

The emergency motion, filed Wednesday in the U.S. District Court of the District of Columbia, says the Centers for Disease Control caved to “a tidal wave of political pressure” in issuing a new order that stops evictions until Oct. 3. The plaintiffs in the case, including realty groups from Alabama and Georgia, argue the new ban conflicts with prior court rulings that said the federal government overreached with its first eviction moratorium late last year.

The new policy forbids property owners from removing tenants from their homes for not paying rent in counties the CDC says are experiencing “substantial” or “high” rates of COVID-19 transmission. Currently, the order would apply to more than 80% of U.S. counties, the CDC said. That’s a change from the original moratorium, which covered all renters.

The CDC issued the more focused 60-day ban Tuesday following outcry from progressive Democrats who said failure to extend the eviction moratorium would put people at risk at a time when virus cases have increased. Realty groups have argued the ban hurts “mom-and-pop” landlords who can’t pay their own bills without rental income. Meanwhile, more than 3.6 million adults—out of 7.4 million who reported being behind on rent—said they are “somewhat” or “very” likely to be evicted in the next two months, according to the most recent Census Bureau household survey, taken June 23 through July 5.

Change of Course

The new ban represents a change of course for the administration of President Joe Biden, which previously said it could not extend the original eviction moratorium beyond the end of July after it narrowly survived a challenge in the Supreme Court. In that decision, Justice Brett Kavanaugh cast the deciding vote in favor of the government in late June, saying he felt the CDC had overstepped its authority in issuing the eviction freeze. But he ruled that the ban would be kept in place until July 31 due to the limited time then left on it.

U. S. District Judge Dabney Friedrich originally ruled in May that the eviction ban should be overturned because the CDC did not have the legal authority to impose a nationwide moratorium. She later allowed the moratorium to temporarily stay in place pending a government appeal.

Biden admitted Tuesday he didn’t know whether a new ban would stand up to a similar legal challenge, but he said that “by the time it gets litigated, it will probably give some additional time” for distribution of rent assistance, a comment the plaintiffs seized on in their filing to suggest that the president knew the ban was unconstitutional.

About $47 billion in rent assistance has been given by the federal government to states and local programs, but only $3 billion had made its way to renters by the end of June, due to red tape. The government said in late July that it has sorted out the issues, and the pace of distribution has begun to pick up.

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  1. Court Listener. “Alabama Association of Realtors vs. U.S. Department of Health and Human Services. Emergency Motion To Enforce the Supreme Court’s Ruling and to Vacate the Stay Pending Appeal.” 

  2. Centers for Disease Control and Prevention. “CDC Issues Eviction Moratorium Order in Areas of Substantial and High Transmission.”

  3. U.S. Census Bureau. “Week 33 Household Pulse Survey: June 23-July 5.”

  4. The White House. “Remarks by President Biden on Fighting the COVID-19 Pandemic.”

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