A federal judge suggested Monday that the Biden administration was engaging in legal “gamesmanship” in order to resurrect a pandemic-related eviction ban, despite the Supreme Court’s ruling that the measure was unconstitutional.
U.S. District Court Judge Dabney Friedrich made the remark during a hearing on a request by real estate brokers and landlords to halt the new policy implemented by the Centers for Disease Control and Prevention last week. President Joe Biden let an earlier eviction moratorium expire at the end of July, but reinstated it on Tuesday after intense pressure from liberal lawmakers and activists.
“Given that this order is almost identical to the CDC’s previous order in terms of effect, it’s really hard… to conclude that there isn’t a degree of gamesmanship going on,” Friedrich said.
According to Brett Shumate, a lawyer for Alabama and Georgia Realtors who are challenging the anti-eviction measure, the rejiggering of the ban last week amounted to an effort by the Biden administration to defy federal court rulings, including the Supreme Court. The new moratorium, which is set to expire on Oct. 3, applies to counties with high levels of Covid-19 transmission, which currently accounts for about 80% of counties. “The court should not tolerate the government getting away with it,” Shumate said.
The judge, however, appeared skeptical of Shumate’s arguments that an opinion from Justice Brett Kavanaugh, combined with the votes of other justices in an emergency ruling issued by the Supreme Court in June, amounted to definitive guidance from the high court on how to handle the Biden administration’s new iteration of the ban.
In May, Friedrich ruled that the earlier version of the eviction ban exceeded the CDC’s authority, but she agreed to stay her decision while the Biden administration appealed. On June 29, the Supreme Court voted 5-4 to deny the Realtors’ request to have her ruling enforced and the moratorium lifted.
Friedrich, an appointee of former President Donald Trump, noted during the hearing Monday that while Kavanaugh indicated he was inclined to block any extension of the previous ban beyond July 31, the four justices who voted to block the eviction moratorium never explained their positions.
“None of those justices gave their reasoning, so we don’t know what they thought,” Friedrich explained.
Attorney Brian Netter for the Justice Department warned that the D.C. When interpreting Supreme Court decisions, the Circuit Court of Appeals has specifically instructed judges not to engage in such math.
“We don’t yet know how the Supreme Court will weigh in,” Netter said, prompting Shumate to recall the White House’s public statements that the high court’s June 29 decision precludes the executive branch from extending the ban on its own.
When the original ban imposed by the CDC in September expired on July 31 and urged Congress to pass legislation to extend it, the Biden administration cited the Supreme Court’s decision. For days, White House officials repeated that explanation, with senior adviser Gene Sperling telling reporters that the administration had “double, triple, quadruple checked” its options but that the CDC could not find legal authority.
Even after the administration reversed course in response to intense pressure from outraged Democrats, Biden cast doubt on the ban’s legality, saying that “any call for a moratorium based on the Supreme Court’s recent decision is likely to face obstacles.” The case hinges on whether a 1944 public health law granting the Department of Health and Human Services certain powers to prevent the spread of a communicable disease is constitutional.
On Monday, the government argued that the recent increase in Covid-19 cases due to the highly transmissible Delta variant meant that circumstances had changed since the high court’s decision was released on June 29.
“We’re here today because of the Delta variant, because cases have increased seven-fold since the end of June” when the Supreme Court weighed in, Netter said. “We’re in a new chapter of this pandemic.”