Federal judge suggests ‘gamesmanship’ at play in eviction freeze

A federal judge in Washington, D.C., on Monday suggested the Biden administration had engaged in “gamesmanship” by renewing a freeze on evictions despite an unfavorable Supreme Court ruling. 

During a 30-minute hearing, U.S. District Judge Dabney Friedrich questioned why the Centers for Disease Control and Prevention (CDC) imposed an eviction moratorium last week after officials had publicly expressed doubts about the administration’s legal authority to do so.

“Given that this order is almost identical to the CDC’s earlier order, at least the effect of it, it’s really hard in light of the Supreme Court’s decision, and the 6th Circuit’s decision, in light of statements the administration has made both before and after the Supreme Court decision, to conclude that there’s not a degree of gamesmanship going on,” Friedrich told a government attorney.

Friedrich, a Trump appointee, also posed sharp questions to a group of property owners who are challenging the eviction moratorium as an unlawful government overreach, at a cost of some $13 billion each month to landlords.

One central issue in Monday’s hearing was which of two higher court rulings — one from the D.C. Circuit Court of Appeals and another from the Supreme Court — should guide Friedrich’s decision, which she said she would announce soon. 

During a colloquy with an attorney for the landlords, Friedrich pointed to the D.C. Circuit Court’s decision in June to leave the moratorium intact while an appeals process plays out, and asked: “Why are my hands not tied?”

The eviction pause has faced numerous court challenges, leading to a patchwork of interpretations nationwide on the moratorium’s lawfulness.

In May, Friedrich ruled that a previous version of the CDC’s eviction suspension was an illegal exercise of the agency’s authority. But she agreed to delay enforcement of her ruling, citing the risk to public health if evictions were allowed to proceed.

The ensuing months have seen a flurry of political and court activity related to the eviction freeze as the delta variant of the coronavirus has spread through some of the most eviction-vulnerable communities in the U.S. 

The CDC measure, originally enacted in September, protects tenants who state under penalty of perjury that they are unable to pay rent and would face overcrowded conditions if evicted, threatening public health. After the original CDC order was extended several times, the Biden administration allowed the moratorium to expire at the end of July.

The lapse drew fire from progressives and set off finger-pointing between congressional Democrats and the White House over who bore responsibility for renewing protections for renters, many of whom have not received federal aid from their state governments. 

The Treasury Department in late July said roughly $3 billion of the $46 billion allocated for emergency rental aid had been distributed as the eviction ban closed in on its expiration date. According to an estimate from the Aspen Institute, as many as 15 million Americans across 6.5 million households would face eviction this month without federal protections.

The CDC last week imposed a new, narrower eviction freeze to replace the one that expired. But the latest measure immediately faced legal questions in light of the judicial rulings against the earlier iteration.

During Monday’s arguments, an attorney for the challengers, led by the Alabama Association of Realtors, accused the White House of operating in bad faith with its renewed eviction freeze. 

Attorney Brett Shumate cited a litany of statements by President Biden and other officials indicating their misgivings about the administration’s legal authority to extend the CDC order following rulings against it.

Shumate pointed to an Aug. 5 statement by Biden, in which the president said of the White House’s power to impose new protections: “The Court ruled by — and made it very clear — the Supreme Court said, ‘You can’t do that. You don’t have the authority to do that.’ ”

In June, the D.C. Circuit Court of Appeals, and later the Supreme Court, denied requests from the landlord group to implement Friedrich’s ruling, which would have effectively ended the eviction ban.  

Justice Brett Kavanaugh, one of the high court’s more conservative jurists, charted something of a middle path. He voted to deny the landlords’ request, but also said he agreed with Friedrich’s view that the CDC had exceeded its authority in enacting the moratorium.

In a brief concurrence, Kavanaugh said he believes Congress would need to pass new legislation for the CDC to lawfully push the moratorium past July 31.

“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,” Kavanaugh wrote. 

Four of the court’s more conservative justices, Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett, indicated that they would have lifted the stay and allowed Friedrich’s ruling to take effect while the Biden administration appeals. 

On Monday, an attorney for the Department of Justice (DOJ) told Friedrich that Kavanaugh’s concurrence was not binding on her forthcoming decision.

“We only have the views of one justice,” said DOJ lawyer Brian Netter. “We don’t know what the viewpoints of the [other] justices were.”

Netter drew some pushback when he urged Friedrich to leave the moratorium intact in light of the uptick in coronavirus cases amid the spread of the delta variant.

“We’re in a new chapter in this pandemic,” Netter said. “The new, or extended, moratorium is a reflection of the updated public health situation.” 

Friedrich responded: “You say we’re in a new chapter, but we’re also in a new chapter with many more people vaccinated.”