President Joe Biden announced last week that the Centers for Disease Control and Prevention would be extending its eviction moratorium.
Critics soon complained that the administration is pushing ahead in violation of a U.S. Supreme Court ruling that such a unilateral extension would be unconstitutional — and one federal judge appears to agree.
“Not likely to pass constitutional muster”
According to The Hill, U.S. District Judge Dabney Friedrich expressed skepticism on Monday, pointing out that even the moratorium’s backers admit it is likely to be struck down.
“Given that this order is almost identical to the CDC’s earlier order, at least the effect of it, it’s really hard in light of the Supreme Court’s decision, and the 6th Circuit’s decision, in light of statements the administration has made both before and after the Supreme Court decision, to conclude that there’s not a degree of gamesmanship going on,” he said.
Fox News reported that Biden himself acknowledged during a press conference earlier this month that the order faces an uncertain fate.
“The bulk of the scholars say it is not likely to pass constitutional muster,” the president said.
Supreme Court Justice Brett Kavanaugh made it clear in a ruling in June that any attempt to extend the moratorium would need to be approved by Congress instead of a unilateral executive decision.
“The CDC lacks authority”
“In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31,” he determined at the time.
A group of realtors who challenged the new eviction policy have since cited Kavanaugh’s own words in their brief.
“Justice Kavanaugh’s controlling opinion was clear that the CDC could not extend the moratorium past July 31 absent ‘clear and specific authorization (via new legislation),” the document asserts. “This Court has already concluded that the CDC lacks authority to issue or extend an eviction moratorium.”
For her part, White House press secretary Jen Psaki attempted to downplay worries that the president is subverting the rule of law.
“I’m not sure there are Americans evaluating it to that degree,” she told reporters last week. “Maybe there are some you’ve talked to.”