Biden administration’s eviction moratorium survives legal challenge as judge denies landlord lawsuit

A federal judge has rejected a legal challenge against the US Centers for Disease Control and Prevention’s order to block evictions during the Covid-19 crisis, extending protections through 3 October.

The ruling from US District Judge Dabney Friedrich, who was appointed by Donald Trump, denied a challenge from real estate groups to overturn an order from Joe Biden administration to protect millions of vulnerable Americans from losing their housing during the public health crisis.

Barring a successful appeal, the moratorium – which was effectively renewed after a push among activists and progressive lawmakers as the previous order expired – will remain in place.

Millions of Americans are behind on rental payments, according to the Center on Budget and Policy Priorities. More than 2.5 million of those households have annual incomes of less than $25,000, and another 1 million earn less than $35,000, according to US Census Bureau data collected by the National Low Income Housing Coalition.

The federal government distributed more than $1.5bn in rental assistance in the month of June alone – more aid than was distributed in the previous five months combined, for a total of roughly $3bn, according to the US Department of Treasury.

But that total represents only 6.5 per cent of the more than $46bn in rental aid approved by Congress during the coronavirus pandemic, and housing advocates have repeatedly warned that prematurely ending federal, state and local eviction bans without getting that assistance to vulnerable households could endanger millions of Americans who have fallen behind on rent in the economic fallout from the pandemic.

The previous CDC order lapsed on 31 July, and without any White House or congressional action to extend protections, including a recess at the House of Representatives, progressive lawmakers protested at the US Capitol.

Following months of warnings and calls from Democratic lawmakers to revive the ban, the White House on 3 August advanced measures to protect residents from eviction in areas with high rates of Covid-19 transmission.

Though the number of households receiving rental assistance to pay off months of rent and housing costs following the economic fallout from the public health crisis is beginning to climb, state and local governments have struggled to get it into their hands.

The Biden administration has urged state and local governments, legal aid organisations, court systems and community groups to help raise awareness of available aid and speed up relief.

“Funds are still not flowing fast enough to renters and landlords,” the Treasury Department said last month. “Treasury is continuing an all-out effort, in coordination with the White House and interagency partners, to get the word out about the availability of rental assistance and to support grantees in ramping up their efforts.”

While the freeze on evictions has halted an immediate crisis, lawmakers, housing advocates and a group of bipartisan mayors in 33 cities, among others, have warned that temporary fixes cannot address the lasting impacts of the nation’s affordability crisis.

While the Emergency Rental Assistance programme is “helping develop a new national infrastructure for rental assistance and eviction prevention that did not previously exist” and is scaling quickly, available data from cities and states across the US has shown an uneven response.

In June, the US Circuit Court of Appeals in Washington DC and the US Supreme Court denied requests to challenge the previous eviction ban.

Justice Brett Kavanaugh joined the majority in the court’s 5-4 decision, but added that the CDC had likely exceeded its authority.

But “because the DC Circuit’s judgment affirming the stay binds this Court and the Supreme Court did not overrule that judgment, the Court will deny the plaintiffs’ motion,” Judge Daphney wrote on 13 August.

“It is true that the Supreme Court’s recent decision in this case strongly suggests that the CDC is unlikely to succeed on the merits,” she said.

But “the Supreme Court did not issue a controlling opinion in this case, and circuit precedent provides that the votes of dissenting Justices may not be combined with that of a concurring Justice to create binding law,” she added.

She said that real estate groups who have challenged the latest CDC order must head the US Court of Appeals to challenge the moratorium, set to expire on 3 October.