The Volokh Conspiracy

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Biden Administration Will Not Extend Eviction Moratorium Because of Justice Kavanaugh

White House reinforces Justice Kavanaugh's cooperative approach to the Separation of Powers.


Last month, five Justices found that the federal eviction moratorium was unconstitutional. But only four of them were willing to do something about it. Justice Kavanaugh declined to enjoin the policy because the government did not plan on extending the moratorium past August. His decision gave holdover tenants nationwide a one-month reprieve from the law.

At the time, I wrote:

Justice Kavanaugh issued a clear ultimatum to the Biden Administration: if you extend the moratorium one more time, I'll flip my vote. Congressional authorization is not needed now. But come August 1, I'll boof up your executive action. In effect, Justice Kavanaugh is telling Biden to go to Congress, or throw 6 million people on the street.

The Biden Administration has announced it would not extend the policy one more time. And WH Press Secretary Psaki said Justice Kavanaugh tied her hands!

Unfortunately, the Supreme Court has made clear that this option is no longer available.  In June, when CDC extended the eviction moratorium until July 31st, the Supreme Court's ruling stated that "clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31."

In light of the Supreme Court's ruling, the President calls on Congress to extend the eviction moratorium to protect such vulnerable renters and their families without delay.

No, that sentence is not from the Supreme Court's ruling. It was from Justice Kavanaugh's concurrence.

Perhaps the worst ramification of this decision is that Justice Kavanaugh will feel like his cooperative approach to the separation of powers worked: I will look the other way while the government acts illegally, so long as they clean up their act real soon! The Biden Administration has reinforced one of Justice Kavanaugh's worst tendencies. If it worked here, he'll try it again. Every punch will be pulled to avoid actually disturbing the status quo.

On August 1, DOJ will argue that pending eviction moratorium cases have become moot. At least one case, Terkel v. CDC, should remain live. I filed an amicus brief in that constitutional challenge.