Federal judge says she knows eviction moratorium is illegal but leaves it in place anyway. Here’s why

A federal judge refused to overturn the Biden administration’s eviction moratorium on Friday even though she admitted to plaintiffs that she believes it to be illegal.

In her ruling, U.S. District Judge Dabney Friedrich of the U.S. District Court for the District of Columbia, a Donald Trump appointee, said her “hands are tied” by a higher court ruling related to the last time courts examined the constitutionality of the moratorium earlier this year, leaving an Alabama realtor group representing landlords like to appeal, according to The Associated Press.

A new temporary ban on evictions was put in place earlier this month by the Centers for Disease Control and Prevention after a previous moratorium expired July 31.

In her ruling, Friedrich said that the new moratorium is quite similar to the previous version which she had ruled unconstitutional in May. But at the time, she stayed her own ruling to give the Biden administration an opportunity to appeal.

But this time around, Friedrich said that she’s bound to adhere to a previous ruling from the next-highest court, the U.S. Court of Appeals for the District of Columbia Circuit.

The AP noted that if the higher court does not rule in favor of the landlords then they are likely to appeal to the U.S. Supreme Court.

In June, the high court ruled 5-4 that the CDC lacked the constitutional authority to issue a moratorium in the first place, which was imposed during the Trump administration as a means of protecting renters from eviction who may have lost jobs and income due to COVID-19 lockdowns.

Writing for the majority, Justice Brett Kavanaugh noted that he was in agreement with Friedrich but allowed the moratorium to remain in effect anyway since it was set to expire the following month.

The justice also noted then that he would not support any additional extensions of the moratorium without legislation from the Democrat-controlled Congress, which failed to enact one prior to being adjourning for its summer break.

While discussing a new eviction ban last week, President Joe Biden admitted that most legal scholars he had consulted agreed the agency lacked the authority to issue a new moratorium, adding, however, that “key scholars” believed it would be legal, which then led him to approve a new moratorium from the CDC.

He also said that in any case, while the new moratorium was being litigated, the federal government would have more time to distribute more of the $45 billion in rental assistance relief passed earlier this year by Congress, the bulk of which remains unspent.

Shortly after the CDC reissued the moratorium, White House press secretary Jen Psaki struggled to defend it.

“Sunday … the White House was engaged directly with the CDC, at the direction of the president, to ask them to look into what legal options, if any, there were to extend the eviction moratorium,” she told reporters earlier this week.

“That process was underway for a couple of days. The announcement yesterday was a reflection of exactly that,” she said.

“I would also note that the conditions have changed. The rise of the delta variant, especially in communities where there are large numbers of unvaccinated individuals, where there are growing case numbers, is certainly something that has raised the alarm for us, it has raised the alarm for members of Congress, and it has certainly added to the need to take this additional step,” she added.

The Washington Post’s editorial board went on to describe the new moratorium as “almost certainly illegal.”

Jon Dougherty

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