Biden Eviction Moratorium ‘Likely Unlawful’ And Will ‘Almost Certainly’ Be Challenged In Court, Legal Experts Say

The Biden administration’s decision to extend the federal eviction moratorium is “likely unlawful” and will “almost certainly” be challenged in court, according to legal experts familiar with the matter.

The Centers for Diseases Control and Prevention (CDC) extended the eviction moratorium Tuesday, which had expired Saturday, for regions with “substantial and high” COVID-19 transmission until early October. CDC Director Rochelle Walensky said in a statement the decision was the “right thing to do to keep people in their homes.”

The new extension will be targeted (as first reported by NYT and WaPo)

The moratorium will focus on counties with surging coronavirus cases, I’m told.

This impacts 80 percent of counties, 90% of the population.

— Heather Caygle (@heatherscope) August 3, 2021

The Supreme Court declined to weigh in on the constitutionality of the moratorium or immediately strike down the CDC order in a ruling on the matter in late June, giving the federal government more time to hand out emergency rental assistance funds.

Justice Brett Kavanaugh, however, wrote a concurring opinion stating that a further extension of the moratorium would need congressional approval. President Joe Biden urged Congress days before the restrictions were set to expire to pass legislation extending the moratorium.

The president ultimately went forward with an extension following repeated demands from House Speaker Nancy Pelosi and left-wing Democratic lawmakers, who staged a protest outside the U.S. Capitol for several days. Democrats argued they didn’t have enough votes in the Senate to pass legislation to extend the moratorium. (RELATED: ‘Almost Certainly Illegal’: Washington Post Editorial Board Slams Biden Eviction Moratorium)

Some legal experts told the Daily Caller the CDC order extending the moratorium may not be constitutional and would be challenged in court.

“The new moratorium is likely unlawful. We don’t need to reach any of the potential constitutional issues because it lacks statutory authorization,” Case Western Reserve University law professor Jonathan Adler told the Caller. “This will almost certainly be challenged in court, and I expect any such challenge to be successful.”

University of Richmond law professor Carl Tobias concurred that “the recent action is likely to be challenged in court, and the courts will need some time to resolve the challenge.” But he also told the Caller the CDC’s targeted approach to only barring evictions in places with “substantial and high” COVID-19 transmission “may be constitutional.”

Some legal experts more strongly believe the extension is constitutional. University of California, Los Angeles law professor Adam Winkler wrote Thursday in a New York Times op-ed that the Biden administration had “valid reasons” to extend the moratorium, adding that Congress has given the CDC authority to make and enforce regulations “necessary to prevent the spread of diseases.”

“By law, the CDC has a broad mandate designed for situations like a pandemic, in which public health authorities need to respond quickly to protect human health,” he wrote. “That is exactly what the eviction moratoriums have done.”

Brianne Gorod, chief counsel at the left-leaning Constitutional Accountability Center, also urged against giving too much consideration to Kavanugh’s opinion in the Supreme Court case that indicated only Congress can extend the moratorium.

Courts will “consider how the spread of the delta variant and its significant transmissibility make clear the need for this more targeted moratorium,” Gorod said, according to The Associated Press.

Biden had acknowledged in remarks earlier Tuesday that the move was likely constitutional given the Supreme Court’s decision. He also admitted “the bulk” of constitutional scholarship indicated the move was “not likely to pass constitutional muster.” (RELATED: Biden Admin Consulted Prolific Conspiracy Theorist Laurence Tribe On CDC Eviction Moratorium)

President Joe Biden takes questions during an event in the East Room of the White House on August 3, 2021 (Win McNamee/Getty Images)

His comments were reminiscent of his old boss, former President Barack Obama, when his administration proposed using executive action to implement the Deferred Action for Childhood Arrivals (DACA) program.

Obama had on multiple occasions acknowledged he likely lacked the constitutional authority to provide amnesty to millions of illegal immigrants. He said in 2010, “I am not king. I can’t do these things just by myself.” He admitted the following year he doesn’t have the power to “just bypass Congress and change the law myself,” adding “that’s not how a democracy works.”

Obama’s Homeland Security Department still enacted the DACA program through an executive memorandum in June 2012, providing amnesty to around 800,000 illegal immigrants who came to the U.S. as minors. But when the administration tried to expand the program to include millions of additional illegal immigrants in November 2014, a coalition of states sued.

The Supreme Court upheld a lower court’s injunction blocking the expansion in June 2016, but later ruled against former President Donald Trump’s attempt at repealing DACA in a June 2020 decision.

Both Obama and Biden used executive action despite admitting it may not be unconstitutional. But unlike his former boss, Biden and his CDC moved forward with extending the eviction moratorium even after Justices of the Supreme Court suggested he lacked the constitutional authority.

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