After two federal courts deemed the nationwide eviction pause unlawful, and the Supreme Court indicated that only Congress could extend the ban or put into place a new one, the pause expired, and no moratorium was in place.
President Joe Biden and officials within his administration said they were constrained by the court rulings, but abruptly changed course on Tuesday, imposing a pause for two months in 80 percent of the United States.
Landlords and other real estate owners quickly asked a court to block the new eviction ban, arguing to U.S. District Judge Dabney Friedrich that the executive branch was exceeding its authority.
“In substance and effect, the CDC’s latest action is an extension of the same unlawful ban on evictions that has been in effect since September 2020,” they said.
In their counter-filing Friday, Department of Justice (DOJ) lawyers submitted that the new pause is not the same because it does not apply to the entire country.
Additionally, they said that circumstances have changed since courts ruled against the previous ban.
“The trajectory of the pandemic has changed dramatically as a result of the highly contagious Delta variant,” they said.
Lawyers also noted that the recent Supreme Court ruling left the prior ban in place, even though Justice Brett Kavanaugh, a Trump nominee, said he believed the Centers for Disease Control and Prevention (CDC) overstepped its authority.
“I agree with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium,” Kavanaugh, the swing vote, wrote in a concurring opinion.
“Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application to vacate the District Court’s stay of its order,” he added.
The other four justices who voted to keep the ban in place did not explain their votes, nor did the four justices who voted to strike down the ban.
“Unless and until the Supreme Court rules otherwise, the decision of the D.C. Circuit motions panel that rejected Plaintiffs’ position remains the law of the case, at least as to the factors governing whether any adverse judgment should be stayed,” DOJ lawyers said in the new filing.
If Friedrich, a Trump nominee, disagrees, and rules against the new pause, then she should stay her ruling so defendants can quickly appeal to the U.S. Court of Appeals for the D.C. Circuit or the Supreme Court, the lawyers added.
That strategy was outlined by Biden, who told reporters on Thursday he remained unsure if the new ban was legal.
“I can’t guarantee you the Court won’t rule [that] we don’t have that authority, but at least we’ll have the ability, if we have to appeal, to keep this going for a month at least—I hope longer than that,” Biden said outside the White House.