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Evictions Ban Faces Legality Doubts    08/05 06:07

   President Joe Biden may have averted a flood of evictions and solved a 
growing political problem when his administration reinstated a temporary ban on 
evictions because of the COVID-19 crisis. But he left his lawyers with legal 
arguments that even he acknowledges might not stand up in court.

   WASHINGTON (AP) -- President Joe Biden may have averted a flood of evictions 
and solved a growing political problem when his administration reinstated a 
temporary ban on evictions because of the COVID-19 crisis. But he left his 
lawyers with legal arguments that even he acknowledges might not stand up in 
court.

   The new eviction moratorium announced Tuesday by the Centers for Disease 
Control and Prevention could run into opposition at the Supreme Court, where 
one justice in late June warned the administration not to act further without 
explicit congressional approval.

   Landlords from Alabama whose bid to lift the earlier pause on evictions 
failed returned to federal court in Washington late Wednesday, asking for an 
order that would allow evictions to resume.

   The administration is counting on differences between the new order, 
scheduled to last until Oct. 3, and the eviction pause that lapsed over the 
weekend to bolster its legal case. At the very least, as Biden himself said, 
the new moratorium will buy some time to protect the estimated 3.6 million 
Americans who could face eviction from their homes.

   Some legal scholars who doubt the new eviction ban will stand up say its 
legal underpinnings are strikingly similar to the old one.

   "Meet the new moratorium, same as the old moratorium!" Ilya Somin, a George 
Mason University law professor who backed Biden over former President Donald 
Trump last year, wrote on Reason.com.

   Nicholas Bagley, a University of Michigan law professor, said he expects 
landlords "all over the country to turn immediately to the courts in an effort 
to secure a preliminary injunction," an order that would effectively allow 
evictions to resume.

   The basic legal issue is whether the CDC has the authority in the midst of a 
public health crises to impose a pause on evictions, under existing federal law 
that dates to 1944.

   U.S. District Judge Dabney Friedrich ruled in May the CDC exceeded its power 
under that law, a decision Bagley called "measured and sensible." But Friedrich 
kept her ruling in favor of the Alabama landlords on hold pending appeal.

   In June, the Supreme Court voted 5-4 to allow the moratorium to remain in 
place through the end of July, even though one justice in the majority, Brett 
Kavanaugh, wrote that he believed CDC lacked authority to order it. Extending 
the moratorium any further, Kavanaugh wrote, would be possible only with "clear 
and specific congressional authorization (via new legislation)."

   Congress has not acted. Neither the House nor Senate had the votes for a 
temporary extension, and Speaker Nancy Pelosi did not so much as hint Tuesday 
that she would try to move legislation through the House.

   "Today is a day of extraordinary relief. Thanks to the leadership of 
President Biden, the imminent fear of eviction and being put out on the street 
has been lifted for countless families across America. Help is Here!" Pelosi 
said in a statement.

   Biden was told a new nationwide moratorium, like the one that just expired, 
would likely be blocked by courts, according to a senior White House official 
who spoke on condition of anonymity.

   But the administration went ahead without Congress weighing in, after 
officials devised a plan with enough changes to, they hope, make it less 
vulnerable to court challenges.

   White House press secretary Jen Psaki insisted Wednesday that Biden, who has 
a law degree, would not have supported it if he was uncomfortable with the 
legal standing or approach, despite the doubts he aired publicly a day earlier.

   "This is a narrow, targeted moratorium that is different from the national 
moratorium. It's not an extension of that," Psaki said.

   Pelosi helped recruit Harvard University Professor Emeritus Laurence Tribe 
to work on a solution and persuade the White House that a narrower moratorium 
could stand up in court, according to a person who was granted anonymity to 
discuss private conversations.

   The new order protects renters only in parts of the country where there is 
significant COVID-19 transmission, though in practice it initially covers areas 
where 90% of the U.S. population lives. Evictions can resume once there is a 
lasting reduction in new infections.

   The differences are significant, some legal scholars said.

   "What this does is very directly link the moratorium to the control of 
COVID-19," said Emily Benfer, a Wake Forest law professor who studies health 
and housing. With all the information that is now known about the new delta 
variant, "the war on COVID has changed" since last time the question of the 
moratorium was before the Supreme Court, she said.

   Brianne Gorod, of the liberal Constitutional Accountability Center, also 
cautioned against reading too much into Kavanaugh's one-paragraph comment on 
the moratorium from late June.

   Courts will "consider how the spread of the delta variant and its 
significant transmissibility make clear the need for this more targeted 
moratorium," Gorod said.

   The 6th U.S. Circuit Court of Appeals, which encompasses Tennessee, 
Kentucky, Michigan and Ohio, ruled in late July in a separate lawsuit that CDC 
lacks the authority to issue pauses on eviction. And the CDC order itself says 
it does not apply "to the extent its application is prohibited by federal court 
order."

   As a result, Barbara Peck, a spokeswoman for the Tennessee state court 
system, said Wednesday that lawyers for courts in her state had "advised that 
it is not applicable in Tennessee."

   Some housing advocates said the new system would be complicated but would 
prevent some evictions. Their clients were grateful for the reprieve.

   Antoinette Eleby, 42, of Miami, said she had been worried as she expected an 
eviction order within two to three weeks after she said her landlord twice 
refused to take federal rental assistance. She had sent five of nine children 
to live with her mother in another county.

   But after hearing about the new CDC order, Eleby said she was hopeful the 
additional time would persuade her landlord to take the federal funds and she 
could remain her home. She has been told by her lawyer that the order means she 
cannot be evicted by sheriff's officers.

   "Now that this happened, I'm kind of at ease. I am just seeing what are the 
next steps. I just have to continue hoping for the best," said Eleby, who 
couldn't work for part of the pandemic after her family contracted COVID-19.

 
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