Toomey launches long shot bid to repeal eviction ban

The top Republican on the Senate Banking Committee on Wednesday launched an uphill battle to repeal the Centers for Disease Control and Prevention’s (CDC) new eviction moratorium.

Sen. Pat Toomey (R-Pa.) has introduced a resolution to repeal the CDC measure under the Congressional Review Act (CRA) and asked the Government Accountability Office (GAO) — the federal government’s internal watchdog — to determine whether the moratorium qualifies as a formal regulation.

“Though the CDC did not pursue notice and comment rulemaking, the eviction moratorium appears to be generally applicable, prospective in nature, and designed to interpret law,” Toomey wrote to the GAO.

“For these reasons, I respectfully request that you evaluate whether the eviction moratorium is a ‘rule’ under the CRA.”

The CRA allows Congress to repeal regulations recently issued by federal agencies with the approval of simple majorities in both chambers and ban the agency that issued it from writing similar regulations in the future. While senators could theoretically force a vote on a CRA resolution to repeal the eviction ban, House Democratic leaders are almost certain to ignore it, effectively killing the measure.

Though the eviction ban is likely safe from the CRA, the moratorium still faces several challenges in federal court that could unwind it before its expiration on Oct. 18. 

The CDC last week imposed a new, narrower eviction ban after the moratorium issued under former President Trump in September and extended several times by President Biden expired Aug. 1. After intense pressure from progressive lawmakers, the CDC issued an eviction moratorium only applicable to counties with high levels of COVID-19 spread — covering almost all of the areas protected under the original ban.

Biden and administration officials had insisted that it lacked the power to extend the CDC eviction ban after the Supreme Court suggested it would strike the moratorium down if it was stretched without further authorization from Congress. Republican lawmakers cited those comments in opposition to the new CDC eviction ban, arguing it was a blatant attempt to avert an inevitable repeal.

A federal judge in Washington, D.C., on Monday also suggested that the new ban amounted to “gamesmanship,” saying the moratorium “is almost identical to the CDC’s earlier order, at least the effect of it.”

Even Biden acknowledged the vulnerability of the new eviction ban during a press conference shortly before it was formally issued.

“Whether that option will pass constitutional muster with this administration, I can’t tell you. I don’t know,” Biden said. “There are a few scholars who say it will and others who say it’s not likely to. But, at a minimum, by the time it gets litigated, it will probably give some additional time while we’re getting that $45 billion out to people who are in fact behind in the rent and don’t have the money.”