The lapsed eviction moratorium is the Supreme Court’s fault

On Sunday, a federal eviction moratorium, which was intended to prevent renters from losing their homes in the midst of a pandemic, expired.

At its height, this moratorium may have saved as many as 40 million Americans from eviction. But, in late June, the Supreme Court signaled that this moratorium must expire at the end of July, effectively leaving many renters without protection.

In theory, most of these renters — and their landlords — should have received federal housing assistance. Over the course of the pandemic, Congress allocated $45 billion in rent relief to help people struggling financially due to Covid-19. But the state and local governments charged with distributing these funds have struggled to disburse them quickly.

That means lots of people are behind on their rent and now at risk of eviction. And, because a closely divided Congress is barely able to function even under ideal circumstances, it also appears to mean that congressional leaders are eager to shift blame for a possible eviction crisis elsewhere.

On Sunday, House Speaker Nancy Pelosi and her Democratic leadership team put out a perplexing statement. Although the Supreme Court bears primary responsibility for the end of the eviction moratorium, the words “Supreme Court” do not appear anywhere in the House Democratic leaders’ statement about the now-expired moratorium. Instead, the statement insists that “action is needed,” and then it falsely claims that an effort to “extend the moratorium” must “come from the Administration.”

There is, in fairness, plenty of blame to go around for why the moratorium did not continue after the Court-imposed deadline of July 31.

After President Joe Biden called upon Congress to pass a new law extending the moratorium on Thursday, Pelosi attempted to find the votes to pass such a moratorium through the House — but ultimately came up short in a closely divided chamber where a handful of right-leaning Democrats can scuttle any bill.

Some House Democrats blamed Biden for not speaking out sooner about the need for a moratorium. And, of course, everyone can blame the Senate.

“It is clear that the Senate is not able to” extend the moratorium, the House leaders said in their Sunday statement, adding that “any legislation in the House, therefore, will not be sufficient to extend the moratorium.” In order to pass an extension through the Senate, Democrats would need to either secure 10 Republican votes to break a filibuster or unanimously agree to change the Senate’s rules to bypass the filibuster — something several conservative Democratic senators refuse to do.

But none of the figures implicated by the House leaders’ statement — Biden, Republican Senate Minority Leader Mitch McConnell, or filibuster defenders like Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) — bear the lion’s share of the blame for the moratorium expiring.

That blame should rest with five Republican appointees on the Supreme Court.

The Supreme Court is dismantling much of the Biden administration’s ability to govern

Many federal laws give federal agencies the power to regulate businesses and individuals. The Clean Air Act and Clean Water Act, for example, give the Environmental Protection Agency a fair amount of authority to control pollution and reduce harmful emissions. The Affordable Care Act allows experts in the Department of Health and Human Services to require insurers to cover many medications and vaccines. The Department of Labor has some discretion to determine which workers are eligible for overtime pay.

In Gundy v. United States (2019), however, four justices signaled that they intend to place potentially drastic new limits on Congress’s ability to delegate this sort of authority to federal agencies. The specific legal rule articulated by the conservative justices in Gundy is vague and difficult to parse, but it would give the Court’s right flank tremendous power to strike down regulations they simply don’t like. Justice Brett Kavanaugh, who did not hear the Gundy case because he was not a member of the Court when it was argued, later signaled that he would provide the key fifth vote to slash federal agencies’ power.

The full implications of the approach laid out by the conservative justices in Gundy remain unclear, but it is likely that the Court is going to strip Congress of much of its power to delegate regulatory power to agencies — while stripping many agencies of their existing authority in the process. At the very least, the conservative Court is likely to claim a veto power over any regulatory action taken by a federal agency.

The Court’s June 29 decision in Alabama Association of Realtors v. HHS, the case that effectively ended the federal eviction moratorium, should be understood as part of this broader effort to disempower federal agencies.

In that case, a group of landlords and realtors asked the Supreme Court to halt a federal moratorium preventing many people who were experiencing financial hardship due to Covid-19 from being evicted. This moratorium was originally handed down by the Centers for Disease Control and Prevention (CDC) in September 2020 and has been extended multiple times since then — sometimes by Congress and sometimes by the CDC acting under its own authority.

Specifically, federal law permits the CDC to “make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.” In issuing this moratorium, the CDC determined that a temporary pause on many evictions was necessary to prevent the spread of Covid-19 because people who lose their homes are likely to either move in with friends and family or wind up in shelters, where they could catch the coronavirus or spread it to others.

The plaintiffs in Alabama Association of Realtors argued that the federal law giving the CDC broad authority to prevent the spread of communicable diseases is too broad — so broad that it raises “serious constitutional concerns” similar to the concerns raised by conservatives in Gundy. They also argued that this broad statute must be read very narrowly to forbid an eviction moratorium.

And a majority of the Court agreed with them that the CDC should not have this power. Four justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett — voted to immediately suspend the eviction moratorium. Justice Brett Kavanaugh, meanwhile, voted to give renters a very temporary reprieve.

At the time that Alabama Association of Realtors was decided, the moratorium was set to expire on July 31. Kavanaugh wrote that he agrees with the plaintiffs that “the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium,” but he also decided to let the moratorium expire of its own accord at the end of July — rather than suspending it immediately.

Nevertheless, Kavanaugh was quite clear that the Biden administration could not extend it into August. “In my view,” Kavanaugh wrote, “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”

So that’s four votes to cut off the moratorium right away, plus a fifth vote to cut it off after July 31. Five votes is a majority on the Supreme Court, so, if the Biden administration had attempted to extend the moratorium without seeking new legislation from Congress, it would have lost in court.

All of which is a long way of saying that Congress bears some blame for the expiration of the moratorium. If a majority of lawmakers in the House and a filibuster-proof majority in the Senate had agreed the moratorium needed to be extended, it could have passed legislation doing so, and Kavanaugh’s opinion suggests that he would have upheld that legislation.

But the lion’s share of the blame belongs to the Supreme Court. The reason why the Biden administration cannot extend the moratorium by invoking the CDC’s statutory authority is that the Court was quite clear that it would not permit such an extension.

Rank-and-file Democrats do not understand the threat posed by the Supreme Court

Given the Supreme Court’s role — and, particularly, the role of five Republican-appointed justices — in killing the eviction moratorium, Speaker Pelosi’s response to the moratorium’s demise is baffling. It’s also misleading.

The CDC has the power to extend the eviction moratorium. As they double down on masks, why wouldn’t they extend the moratorium in light of delta variant?

— Nancy Pelosi (@SpeakerPelosi) August 1, 2021

Pelosi is simply wrong to claim that “the CDC has the power to extend the eviction moratorium.”

Yes, a federal statute does give the CDC broad power to control contagious diseases. And yes, this federal statute should be read to give the CDC authority to extend the moratorium. But five justices decided that the CDC does not have this power. So, unless the Biden administration is willing to openly defy the Supreme Court, it is out of options.

Moreover, Pelosi isn’t just wrong about what the CDC can do without Congress intervening, her political calculation also makes no sense. Why would a Democratic speaker blame a Democratic administration for creating a problem that was caused by five Republican appointees to the Supreme Court?

Nor were Pelosi and her fellow leaders the only Democratic lawmakers who seemed to shift blame away from the justices who caused a potential eviction crisis.

After CNN’s Jake Tapper asked Rep. Alexandria Ocasio-Cortez (D-NY), who often acts as a spokesperson for the party’s left flank, who was to blame for the moratorium expiring, she laid blame at the feet of “a handful of conservative Democrats” who didn’t want to vote for an extension. Ocasio-Cortez also singled out the White House for not asking Congress to move sooner and state governors for failing to distribute rent relief funds faster.

Other Democratic lawmakers echoed Pelosi’s misleading claim that the Biden administration should be blamed for not extending the moratorium on its own.

Meanwhile, while the White House’s statement explaining why the CDC would not extend the moratorium correctly noted that “the Supreme Court has made clear that this option is no longer available,” Biden has thus far resisted the kinds of reforms that could rein in an excessively ideological judiciary. Although he appointed a commission to explore potential reforms to the Supreme Court, this commission is strikingly devoid of members who have actually advocated Supreme Court reform in the past.

Congressional Democrats’ instinct — to treat the Court as if it were an uncontrollable force of nature and not a panel of nine political actors whose decisions can be criticized in the same way that they might criticize, say, Mitch McConnell — could have severe political consequences for the Democratic Party.

In just this past term alone, the Supreme Court gutted the Voting Rights Act, targeted labor unions, and expanded wealthy donors’ ability to secretly spend money to influence American politics. All of these decisions benefit the Republican Party at the expense of Democrats, and they could be a middle phase of a much bigger judicial assault on democracy.

And yet, according to a recent Gallup poll, 51 percent of Democrats approve of how the Supreme Court is doing its job, and this number is trending upward.

Gallup

Something has gone seriously wrong with the Democratic Party’s approach to the Supreme Court. If a majority of Democrats approve of a Court that is literally dismantling our nation’s safeguards against racist voter suppression, then Democratic leaders have utterly failed to communicate the potential threat posed by a Court dominated by right-wing justices.

Pelosi and her fellow House leaders, in other words, do their party — and their country — no favors by laying blame for the expired eviction moratorium where it does not belong. This is a problem created by the Supreme Court. And Democrats need to understand that.

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