Biden faces decision time on eviction moratorium

President Biden must decide by Wednesday whether to extend a federal eviction ban as his administration races to send out billions in housing aid to millions of Americans struggling to afford rent.

An eviction moratorium imposed by the Centers for Disease Control and Prevention (CDC) in September is set to expire at the end of the month and is teetering on shaky legal ground after losses in federal court.

Even with an accelerating vaccination campaign, COVID-19 cases are delaying a return to normal economic life and prolonging the recovery for vulnerable households.

More than 10 million Americans are facing housing insecurity, 5.4 million expect to face eviction or foreclosure soon, and more than 78 million said they’re having trouble covering basic expenses, according to a Census Bureau survey conducted earlier this month.

With the U.S. still months away from containing the pandemic, Democratic lawmakers and housing advocates are pushing Biden and the CDC to extend the eviction moratorium.

“The Biden administration should extend the moratorium for the duration of the pandemic. Evictions put lives at risk and undermine our public health. There’s a clear connection between evictions and the spread of COVID and deaths, as a result,” said Diane Yentel, president of the National Low Income Housing Coalition.

The White House referred questions about the future of the eviction ban to the CDC, which did not respond to a request for comment.

Despite the administration’s silence, supporters of the eviction ban say they expect Biden, who extended the moratorium through March shortly after taking office, to extend it again.

“The health reasons for the moratorium absolutely still apply,” said David Dworkin, president and CEO of the National Housing Conference. “I cannot imagine a scenario where the president and the CDC do not extend the moratorium past March 31.”

The CDC in September prohibited evictions of renters — individuals who expected to make less than $99,000 in 2020 and joint-filing couples looking at less than $198,000 — if they failed to pay rent due to a pandemic-related job loss or expense. Though the ban has suffered some legal setbacks, housing advocates say the CDC’s order likely prevented millions of families from losing their homes.

“Between 11 million and 30 million households have been protected from eviction for nonpayment of rent. The positive impact this has had on families across America, as they have been able to maintain a home during the pandemic, can hardly be calculated,” wrote Brooks Rainwater, senior executive of the Center for City Solutions at the National League of Cities, in a Friday email.

Even so, another extension from Biden could be curtailed in federal court after judges in Ohio and Texas ruled the Trump-era order unconstitutional.

The CDC acted under a 1944 law giving federal health officials broad power to take whatever measures they deem “necessary” to stop the interstate spread of infectious diseases. That statute, however, says nothing explicit about housing or contracts and lists only basic health and sanitation practices.

“One federal agency cannot be just assuming the power to control evictions in the entire country,” said Steve Simpson, senior attorney at the Pacific Legal Foundation, a conservative nonprofit representing a group of landlords suing the CDC to repeal the ban.

“The statute in our view just doesn’t give the CDC the authority to do that,” he added.

Simpson’s clients secured a victory earlier this month when a federal judge in Ohio ruled the CDC eviction ban unconstitutional. A federal judge in Texas ruled against the ban in February, raising questions about its legal future.

The potential expiration of the CDC moratorium has made distributing $45 billion in rental assistance even more urgent for the Treasury Department, which has faced growing pressure from Democratic lawmakers after months of delays and confusion.

After Trump approved the first tranche of rental aid through the December coronavirus relief package, the Treasury Department laid out guidelines for how landlords and tenants can apply for assistance. But some Democratic lawmakers and housing advocates say the Trump administration rules didn’t fully account for the patchwork of protections involved in COVID-19 rental issues. 

“I am very concerned about the flexibility that the states have,” Rep. Maxine Waters (D-Calif.), chairwoman of the House Financial Services Committee, told Treasury Secretary Janet Yellen during a hearing last week.

“I’d like to know if you can think about any role we can play to straighten out this confusion and to help stabilize this rental assistance,” she added.

Yellen said the Treasury Department had sent out rental relief funding to eligible state, local and tribal grantees and released revised guidelines earlier in March, but she added that she would work to clear up confusion among tenants, landlords and state housing officials. 

Smoothing out kinks in the rental assistance program should help relieve financial pressure on landlords and tenants who are facing months of rent due once the eviction ban expires. The CDC moratorium leaves renters shielded by it on the hook for missed rent and fees accrued on it, most of which would ideally be covered by federal rental aid.

“The historic levels of emergency rental assistance underscore how important it is for the Biden administration to extend, strengthen and enforce the eviction moratorium. Without this protection, renters will be at risk of losing their homes at the very same time that billions of dollars is on its way to help stabilize them,” Yentel said.