WASHINGTON — President Joe Biden may have averted a flood of evictions and solved a growing political problem when his administration reinstated a temporary ban on evictions because of the COVID-19 crisis. But he left his lawyers with legal arguments that even he acknowledges might not stand up in court.
The new eviction moratorium announced Tuesday by the Centers for Disease Control and Prevention could run into opposition at the Supreme Court, where one justice in late June warned the administration not to act further without explicit congressional approval.
The administration is counting on differences between the new order, scheduled to last until Oct. 3, and the eviction pause that lapsed over the weekend to bolster its legal case. At the very least, as Biden himself said, the new moratorium will buy some time to protect the estimated 3.6 million Americans who could face eviction from their homes.
Some legal scholars who doubt the new eviction ban will stand up say its legal underpinnings are strikingly similar to the old one.
“Meet the new moratorium, same as the old moratorium!” Ilya Somin, a George Mason University law professor who backed Biden over former President Donald Trump last year, wrote on Reason.com.
Nicholas Bagley, a University of Michigan law professor, said he expects landlords “all over the country to turn immediately to the courts in an effort to secure a preliminary injunction,” an order that would effectively allow evictions to resume.
The lawyer for Alabama landlords who took their case to the Supreme Court did not immediately respond to interview requests Wednesday from The Associated Press.
The basic legal issue is whether the CDC has the authority in the midst of a public health crises to impose a pause on evictions, under existing federal law that dates to 1944.
U.S. District Judge Dabney Friedrich ruled in May the CDC exceeded its power under that law, a decision Bagley called “measured and sensible.”
In June, the Supreme Court voted 5-4 to allow the moratorium to remain in through the end of July, even though one justice in the majority, Brett Kavanaugh, wrote that he believed CDC lacked authority to order it.
