Federal Judge Unsure if She Can Block New Eviction Ban

Chris Gaetano
Published Date:
Aug 10, 2021

A federal judge who had previously ruled against the eviction ban enacted by the Centers for Disease Control and Prevention (CDC) told a group of realtors and landlords that she is unsure whether she can do so again for the ban's extension, the Wall Street Journal reported. The federal judge, Dabney Friedrich, commented during a hearing she held yesterday to consider an emergency request by the realtors and landlords to block the extension of the eviction ban.

The moratorium on evictions is an artifact from the last administration's attempts to bypass Congress over pandemic aid. Judge Friedrich said in May that the CDC did not have the authority to implement an eviction ban. While the Department of Justice had requested that any adverse ruling apply only to properties owned by the plaintiffs, the Alabama Association of Realtors, the judge lifted the ban nationwide. In June, upon appeal, the U.S. Court of Appeals for the D.C. Circuit, said that it believed that the federal government had strong arguments in defense of the moratorium.

 The matter ultimately went to the Supreme Court, which ruled (just weeks before the provision's scheduled sunset) that the ban could remain in effect. The court's overall motivation, though, remained unclear, with the only justification coming from Justice Brett Kavanaugh, in a concurring opinion. He did not dispute the plaintiffs' arguments, agreeing that the CDC did indeed overstep its authority. But he noted that the horse had been out of the barn for quite a while and that there would be little point in ending the moratorium just weeks before it was already set to expire. But he did add that the CDC should not be able to extend this moratorium without congressional action

Considering this precedent, President Joe Biden conceded that his latest extension to the moratorium may stand on shaky legal ground. He noted that the bulk of the constitutional scholarship says it’s not likely to pass constitutional muster, but he added that there are several key scholars who say that it may be worth the effort anyway. 

But Judge Friedrich, who was considering an emergency request brought  by the landlords and realtors, said she was unsure whether she had the ability to rule against the ban again, as the U.S. Court of Appeals for the D.C. Circuit supported the ban and,  while Justice Kavanaugh outlined his own reasoning, the rest of the court did not. Thus, she said, it is difficult to tell what exactly the justices were thinking. Despite this uncertainty, she once more expressed skepticism that the ban was legal, and was skeptical it would hold up in an actual court case. 

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