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Supreme Court: Eviction moratoriums need Congress approval

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A Supreme Court decision from June made clear that any future CDC eviction moratoriums would be struck down without action from Congress first.

The end of July marked the end of the Centers for Disease Control (CDC)’s national eviction moratorium, which shielded some renters from eviction during part of the coronavirus pandemic. The Aspen Institute estimates 15 million people in 6.5 million households are currently behind on rental payments.

Former President Donald Trump called on the CDC to look into such a moratorium in an August 2020 executive order, which the CDC then followed through with on Sept. 4. The CDC argued it was necessary to control COVID-19’s spread by keeping renters who met certain criteria and continued to pay rent to the best of their abilities off the streets and out of crowded shelters. After several extensions by both the CDC and Congress, the CDC said it would not extend it again past July 31, 2021.

The moratorium expired despite prominent Democrats stating multiple times this week that the moratorium needs to be extended. This includes on Aug. 1, the day after the eviction moratorium expired, when Democratic House Speaker Nancy Pelosi said, “The CDC has the power to extend the eviction moratorium.”


Does the CDC have the power to extend the eviction moratorium?

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No. A recent Supreme Court decision said Congress would need to pass new legislation for the CDC to extend the eviction moratorium beyond July 31. 


On June 29, the Supreme Court chose to uphold the CDC’s last eviction moratorium extension on a 5-4 decision. But Justice Brett Kavanaugh was the swing vote, and his concurring opinion made it clear he wouldn’t side with the CDC again.

“Clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31,” Kavanaugh wrote. He said the time between the Court’s decision and July 31 would “allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds.”

The White House released a statement on July 29 that said, “President Biden would have strongly supported” a CDC extension on the eviction moratorium but “the Supreme Court has made clear that this option is no longer available.” Biden called on Congress to extend the moratorium in his statement.

Democratic Representative Maxine Waters responded that same day by releasing a bill to extend the eviction moratorium to the end of the year. She cited Kavanaugh’s opinion requiring congressional authority for an extended moratorium in her news release about the bill.

Then in a July 31 media stakeout, Speaker of the House Nancy Pelosi said, “[the CDC] says they do not have – and I trust – that they don’t have the authority to extend the moratorium. The ball then, yesterday, came to our court, and we will make good of it. But, again, it will take a little more time.” 

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Democratic House leadership released a joint statement Aug. 1 that then called upon the Biden Administration and the CDC to extend the moratorium themselves, citing that there is not sufficient support in Congress to extend it on their end.

Waters’ also began implying the CDC could extend the moratorium as the deadline drew near. 

“Throughout the last 24 hours, I worked with House leadership to respond to President Biden’s unexpected lack of effort and refusal to use his authority to extend the moratorium on evictions,” Waters said in a press release on July 30, a day after her initial release. “At the very last minute, the Biden Administration indicated that it would be up to the Congress to protect struggling renters and prevent a wave of evictions.”

However, she also passed some blame to Democratic House leadership.

“It was and still is my belief that my bill should have been voted on,” Waters said in the same statement. “There was a difference of opinion between me and House Democratic leadership about how we should respond to this emergency. While leadership chose to seek unanimous consent from the Republicans, they did not get it. I wanted leadership to put my bill up for a vote on the Floor under a rule.”

Unanimous consent allows a bill to move forward quicker than the normal voting process but requires every member of the House to be on board with it first. The congressional record shows a single Republican’s objection to the bill was enough to thwart Democratic efforts to expedite its passage.

When a reporter in a press briefing asked a White House official why the Biden Administration waited a month to inform Congress it would need to extend the eviction moratorium rather than the CDC, the official said, “we’ve been having conversations with Congress for some time about this.” The White House did not share any details about these conversations when pressed by reporters.

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The Biden Administration has extended eviction and foreclosure moratoriums on property its agencies have financed and secured, according to the Treasury Department. These protections apply to buildings with mortgages backed by Fannie Mae or Freddie Mac, the Federal Housing Administration, the U.S. Department of Agriculture or the Veterans Administration until Sept. 30.

Biden’s Administration is working to expedite the use of the Emergency Rental Assistance program funds by states and localities across the nation, which are supposed to be used to fund subsidies for renters and landlords. Each Democrat who made statements about the moratorium complained that only $3 billion of the $46 billion set aside for ERA has been used so far. According to the National Low Income Housing Coalition, that’s about 12% of the part the Treasury Department is reporting data on so far.

Additionally, some states have maintained their own eviction bans. Details and lengths of these bans vary by state.

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