Judge suggests ‘gamesmanship’ at play with CDC’s latest eviction moratorium

By Tierney Sneed, CNN

A federal judge suggested Monday that “gamesmanship” was at play with the eviction moratorium the Biden administration rolled out last week, but also expressed skepticism about the legal arguments being put forward by landlords who are seeking to block the moratorium.

The question of whether millions of people could be soon evicted from their homes is in front of DC District Court Judge Dabney Friedrich, a Donald Trump appointee who previously ruled with the landlord groups that have challenged the moratorium in court.

At a court hearing on Monday, she weighed a request by the landlords to halt the version of the moratorium issued Tuesday by the US Centers for Disease Control and Prevention.

The new eviction order was unveiled after President Joe Biden and his aides had suggested that they did not think such an order would hold up in court because Justice Brett Kavanaugh, the swing vote on the Supreme Court on the issue, indicated he would not support future extensions of the moratorium.

“It is really hard … to conclude that there is not a degree of gamesmanship going on,” Friedrich said, pointing to the Supreme Court’s handling of the issue and the comments made by Biden administration officials.

Still Friedrich said she felt as if her hands were tied by how the DC appellate court has handled the litigation over the moratorium. That court said that an earlier version of moratorium could continue, and the Supreme Court let that previous moratorium — which was set to expire on July 31 — to continue as well.
“Tell me why my hands are not tied in light of the D.C. Circuit’s opinion,” Friedrich asked the landlords’ lawyer, Brett Shumate.

Weighing a concurrence from Kavanaugh

The lawsuit challenging the eviction moratorium was brought by several landlords, including state and national realtor groups, last November. They’ve argued that the CDC was acting beyond its authority in implementing the moratorium. Since the start of the pandemic, moratorium has been renewed on several occasions — sometimes by Congress, some times unilaterally by the CDC.

Though Friedrich issued a May ruling siding with the landlords, she put that ruling on hold and the US Court of Appeals for the DC Circuit also said the moratorium could continue.

When the landlords then took the case to the Supreme Court, it too let the previous iteration of the moratorium — which was set to expire on July 31 — to stand. The vote was 5-4 and Kavanaugh, a conservative who provided liberals a swing vote in the case, wrote a concurrence indicating that he only did so because of the CDC’s assurance that it would not be extend the moratorium beyond that date.

Kavanaugh wrote that “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”

In the wake of that concurrence, the White House put the onus on Congress to act on addressing the pending eviction crisis. But as pressure continued to build — and Democratic lawmakers were unable to move legislation on their own — the Biden administration reversed course with another, more targeted moratorium issued by the CDC on Tuesday.

A promise for a decision in the ‘near future’

By Wednesday, the landlord groups had filed a request that Friedrich block the new moratorium. The groups pointed to Kavanaugh’s concurrence, and to remarks made by Biden and other White House officials that seemed to interpret Kavanaugh’s comments to mean that the CDC would not be able to extend the moratorium again. The landlord groups are accusing the Biden administration of caving to political pressure and acting in bad faith in reissuing the moratorium.

Even though Friedrich has pointed comments about the Biden administration’s maneuver, she she still spent a significant portion of Monday’s hearing grilling the landlords’ lawyer on whether she actually has the ability to block the moratorium.

She said that she was having a “hard time” with the landlords’ arguments that she should not follow the DC Circuit Court’s decision that previously allowed the moratorium to stand.

“On the Supreme Court decision, Justice Kavanaugh’s concurrence is not controlling, correct?” she asked their attorney, Shumate. Shumate said he did not agree.

Meanwhile, the judge questioned Justice Department attorney Brian Netter on whether the new eviction order that much more tailored than the previous version, as it will still covers the vast majority of the country.

Friedrich wrapped up the roughly 30-minute hearing with a promise that she’d issue a decision on whether to block the new version of the moratorium “in the near future.”

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