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.

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  1. Now for the Takings suits.

    1. Landlords who go unpaid should bill the states for their lockdowns, and the federal government for its quack quarantines. Then sue them for the takings that served no government interest.

    2. I concur with filing claims for takings

      While technically, the unpaid rent remains due and payable, collectibility becomes very unlikely after 2-3 months past due

      Secondly, congress did not cure the problem with the dec 2020 legislation since, the authorized government payments to cover the unpaid rent went to the tenants and not directly to the landlords

  2. He’s gonna fart on their executive action?

  3. The right of revolution is the only way …

    1. Apparently Justice Kavanaugh’s worst tendencies as a judge are:

      1. Balancing the equities on an application for an injunction, which is what he is legally required to do.

      2. Showing an understanding about the human stakes involved in the cases in front of him.

      Outside of the bizarro world of conservative Supreme Court punditry, those are two traits most people would want in a judge.

      1. Whoops not meant as a reply.

      2. Kavanaugh was born and grew up inside the Beltway. He then got indoctrinated at Ivy schools. He is a big government biased rent seeker all the way.

      3. So basically he is a politician. I’d rather he find the correct decision. Let congress do it’s job rather than government by bureaucratic fiat. And if we want to let tenants stay free in owners houses for whatever reason, it should be paid for by the population at large rather than from the landlords pocket specifically.

  4. But I am going to guess you had no problems looking the other way in McGirt because, you know, all the bad things. The dissent in that case was based exclusively on the fact that if Oklahoma was forced to follow the law, you know, bad things.

  5. “I’ll boof up your executive action.”

    Has the meaning of the slang word “boof” changed in recent years?

    1. The meaning of the term was hotly debated during the justice’s confirmation.

  6. I don’t see what Blackman’s criticism here is. Maybe he needs a few more guardrails.

    1. He’s mad because he thinks there’s something wrong with a pragmatic decision not to issue an injunction against an executive order that he thought illegal.

      But Blackman is just wrong on this. It may seem weird to some, but you are never automatically entitled to an injunction. There’s a balance of equities. And BK’s approach made perfect sense- give the country a bit of time to wind down the moratorium.

      There are precedents for this. For instance, Northern Pipeline was a stayed ruling- to give the government time to set up some new bankruptcy courts rather than throwing everything into chaos. Courts have broad equitable powers with respect to injunctions.

      1. Not quite. Blackman thinks there is something wrong with a judge’s decision not to issue an injunction when the JUDGE thinks the EO is illegal. As do I.

        1. Except there are other factors besides success on the merits that judges are supposed to take into account when deciding whether injunctive relief is appropriate. Kavanaugh, as he is required to do as a judge, took those into account when reaching his conclusion. It doesn’t matter if he thought that ultimately the plaintiffs would have been right on the merits. The other factors required for entering injunctive relief weighed heavily against issuing it.

          Blackman is mad that Kavanaugh acted like a judge.

  7. “Psaki said Justice Kavanaugh tied her hands!”


  8. The prospect of many evictions seems to provide, for many conservatives, a brief respite — even a rare moment of joy, in some cases — from their lifelong sadness as disaffected culture war casualties in modern America.

  9. To be honest, I dont see a problem with what Kavanagh did. It worked out for everyone, didn’t it? We got to the right decision and the government was able to unwind the program gracefully.

    1. It didn’t work out for the property owners.

      1. The moratorium itself, maybe not. The additional month of it thanks to Kavanaugh, no real effect. Contrary to the screaming of the media, nobody gets evicted that quickly anyway.

  10. It seems strange that Biden waited out nearly the whole month before asking Congress to do something. Of course, it’s also Congress’ job to watch for Supreme Court decisions like this and act if it wants to.

    1. Nothing strange about it, he wanted a bogeyman and he has that with a Republican appointed Justice. He would never embarrass Congress because its run by Democrats

  11. Courts routinely stay their decisions for a period of time to allow for appeals or an orderly transition.

    Or they order lower courts to do things or agencies to do things. Neither of these result in instant change.

    How is this different? “You can’t do this but you’ve already planned for an end to the policy in the near term.”

    We don’t need autistic judges.

  12. I’m curious what the Democrats ultimate plan here is. Let us say they get their extension somehow. Once the eviction moratorium ends…how long are landlords supposed to give tenants to pay back all the rent money they owe from the last year? Will they be required to wait years to get the money they are owed? Will there be a moratorium on evicting people for failing to pay back rent they didnt pay during the previous eviction moratorium?

  13. I think that the CDC’s order is illegal and unconstitutional but given the length of time it was in place and that it was set to expire, I don’t have much of an issue with Kavanaugh voting not to enjoin the order so long as it expired as scheduled. Regardless any landlord who doesn’t receive the full rent from any tenant they were unable to evict due to the CDC order (and any law passed by Congress if one should be enacted) should be entitled to receive the difference from the federal government as they would any other “taking.”

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