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Federal judge skeptical new eviction moratorium can survive legal challenge

"It's really hard to conclude that there's not a degree of gamesmanship going on," U.S. District Court Judge Dabney Friedrich said.
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A federal judge in Washington seemed skeptical Monday that the Biden administration's new moratorium on evictions can survive a legal challenge brought by a group of landlords.

"It's really hard to conclude that there's not a degree of gamesmanship going on," said Judge Dabney Friedrich of the U.S. District Court for the District of Columbia.

The scope and legal basis of the new order "is almost identical to the CDC's earlier order, as is the effect of it," she said.

Friedrich told lawyers during a brief hearing that she had reached her assessment in light of a strong suggestion from the Supreme Court that the Centers for Disease Control and Prevention had no authority to issue such a sweeping order on its own, and in light of statements by Biden administration officials that they had no legal authority to act.

The administration urged the judge to reject a challenge brought by a group of landlords led by the Alabama Association of Realtors.

"We're in a new chapter of this pandemic," Justice Department lawyer Brian Netter said.

Doubts about the CDC's authority were based in part on the nationwide scope of the earlier order, Netter said. The new one is more targeted, covering only counties with a high level of Covid transmission, he said.

"Isn't it the case that it still covers 85 percent of the counties in the U.S.?" Judge Friedrich asked. "Isn't that effectively a nationwide moratorium?"

Netter said while that may be true now, the scope of the moratorium would narrow as the public health picture improves.

The original moratorium on evictions was imposed by Congress as part of the coronavirus relief package in March of last year. When it expired, the CDC issued its own moratorium based on its authority to take steps to protect public health. On May 5, Friedrich ruled that the CDC lacked authority for such a sweeping order, but she delayed her order to give the government a chance to appeal.

The landlords then asked the D.C. Circuit Court of Appeals and the Supreme Court to lift that hold. Both courts declined. But four Supreme Court justices said they would have granted the request. Justice Brett Kavanaugh said he would have, too, but decided not to because the moratorium at that point in late June had only a short time left. He said only Congress could impose such a nationwide moratorium.

But after the House left for its August recess without passing an extension of the moratorium, Democratic lawmakers called on the administration to act.

Arguing for the landlords, Washington lawyer Brett Shumate said that "everyone, including the White House" understood the court's signal to mean that only Congress could issue a new moratorium.

"The CDC and the White House caved to political pressure," he said.

The judge said she would rule on the challenge to the moratorium "in the near future," but did not say when.